The Issue Whether Miami-Dade County’s (“the County’s”) comprehensive plan amendment, adopted by Ordinance No. 20-47 on May 20, 2020, is “in compliance,” as that term is defined in section 163.3184, Florida Statutes.1
Findings Of Fact The Parties Petitioner resides, and owns property, in the County. Petitioner made oral or written comments and objections to the County regarding the Plan Amendment during the time period between the County’s transmittal and adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty and authority to adopt and amend its Comprehensive Plan. See § 163.3167(1), Fla. Stat. Krome is a limited liability company, existing under the laws of the State of Florida, with its principal place of business in the State of Florida. Krome owns the property subject to the Plan Amendment, as well as other property within the area affected by the Plan Amendment, and was the applicant for the Plan Amendment. The Subject Property and Surrounding Uses The Subject Property is 5.97 gross acres (approximately 4.6 net acres) of vacant land located outside of the Urban Development Boundary on the southwest corner of SW 177 Avenue (Krome Avenue) and SW 136 Street. It is the northeast corner of a larger 48.33-acre parcel owned by Krome (the “Parent Tract”). Adjacent to the north of the Parent Tract, across SW 136 Street, is a solar farm operated by Florida Power and Light Company (FPL). To the east, across Krome Avenue, and to the south, including the remaining portion of the Parent Tract, are agricultural lands used for row crops. West and south of the Parent Tract (including the Subject Property), the land is developed predominantly with five-acre rural estates, interspersed with small residential farms and agricultural sites ranging between 10 and 30 acres in size. The Property is located within an approximately 11-mile stretch of Krome Avenue where there are presently no gas service stations. The nearest gas service station to the south of the Property is located approximately three miles away. The nearest gas service station to the north of the Property is located approximately eight miles away. The Plan Amendment The Plan Amendment changes the Future Land Use (“FLU”) designation of the Subject Property from the “Agricultural” to the “Business and Office” land use category. The Business and Office category allows for development of a wide range of sales and services uses, including retail, wholesale, personal and professional services, call centers, commercial and professional offices, hotels, motels, hospitals, medical buildings, nursing homes, entertainment and cultural facilities, amusements, and commercial recreation establishments. The category also allows light industrial development, telecommunication facilities, and residential uses (stand alone or mixed with commercial, light industrial, office, and hotels). Krome sought the Plan Amendment for the ultimate purpose of operating a gas service station and other food and retail uses compatible with, and supportive of, the surrounding agricultural and residential community. In recognition that the “Business and Office” land use designation permits a wide variety of uses, Krome proffered to restrict the permitted uses on the Property by submitting a Declaration of Restrictions to be recorded as a covenant running with the land. County Consideration of Plan Amendment In October 2019, County planning staff issued its Initial Report and Recommendations, suggesting denial of the proposed Plan Amendment. The County’s Community Councils are tasked with providing recommendations on proposed amendments to the Comprehensive Plan. The West Kendall Community Council conducted a public hearing on the proposed Plan Amendment on December 16, 2019, at which members of the public commented on the proposal. A representative of Krome made a presentation at the public hearing and submitted presentation exhibits that included: (1) a proposed Declaration of Restrictions; (2) a County memorandum relating to a separate application to allow the establishment of a gas station at SW 177 Avenue and SW 200 Street in Miami-Dade County; (3) a letter from the Dade County Farm Bureau stating that it had no objection to the Application; and (4) a Petition of Support listing 105 members of the community that elected to express support and recommend approval of the proposal. At the conclusion of the December 16, 2019 hearing, the West Kendall Community Council voted to recommend that the proposed Plan Amendment be adopted with acceptance of the proffered Declaration of Restrictions. After previously deferring the matter at a hearing on October 29, 2019, the Miami-Dade County Board of County Commissioners (the “BCC”) voted on December 17, 2019, to adopt the Plan Amendment on first reading. The County’s Planning Advisory Board (“PAB”) serves as the Local Planning Agency to review any matters referred to it by the BCC, pursuant to section 2-108 of the Miami-Dade County Code. On January 8, 2020, the PAB, acting as the Local Planning Agency, conducted a public hearing to address the proposal. Near the conclusion of the hearing, the chairman of the PAB proposed an amendment to the proffered Declaration of Restrictions such that the maximum gross square feet of enclosed, under-roof construction on the Property, excluding fueling islands, would be reduced from 10,000 square feet to 6,000 square feet. Krome’s representative agreed to the proposed amendment. The PAB then voted to recommend that the BCC adopt the Plan Amendment with acceptance of the revised Declaration of Restrictions. After previously deferring second reading of the ordinance on January 23, 2020, the BCC voted nine-to-three to adopt Ordinance No. 20-47 on second reading at a public hearing on May 20, 2020. As part of its adoption of the Plan Amendment, the BCC accepted Krome’s proffered Declaration of Restrictions containing the provisions outlined below. The adopted Declaration of Restrictions states that it is a covenant running with the land for a period of 30 years, and thereafter automatically renews for 10-year periods. The Declaration of Restrictions expressly allows for “[a]ll uses permitted under Article XXXIII, Section 33-279, Uses Permitted, AU, Agricultural District, of the Miami-Dade County Code” along with an “Automobile gas station with mini mart/convenience store” with a maximum of 15 vehicle fueling positions. The Declaration of Restrictions further provides that “[m]echanical repairs, oil or transmission changes, tire repair or installation, maintenance, automobile or truck washing” are prohibited uses, and it limits the maximum gross square feet of enclosed, under-roof construction to 6,000 square feet. Petitioner’s Challenges In the Amended Petition, Petitioner alleges the Plan Amendment is not “in compliance,” specifically contending that it: (1) creates internal inconsistencies with certain existing Comprehensive Plan policies, in contravention of section 163.3177(2); (2) fails to discourage the proliferation of urban sprawl, as required by section 163.3177(6)(a)9.; and (3) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f). Internal Consistency The Comprehensive Plan gives the County Commission flexibility to appropriately balance the community’s needs with land use, environmental, and other Comprehensive Plan policies. It is inherent in the comprehensive planning process that the Comprehensive Plan contains potentially competing goals, objectives, and policies, and that addressing them entails a balancing act rather than an all-or-nothing choice. The Comprehensive Plan expressly recognizes this balancing act in its Statement of Legislative Intent: The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. * * * Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. Accordingly, the Comprehensive Plan must be read as a whole, and a plan amendment should not be measured against only certain policies in isolation. Krome’s expert, Kenneth Metcalf, opined that the Plan Amendment affirmatively furthers several Comprehensive Plan goals, objectives, and policies, including Land Use Policies (“LU”) 1G, 1O, and 8E; Conservation Policy (“CON”) 6E; Community Health and Design Policies (“CHMP”) 4A and 4C; Coastal Management Policies (“CM”) 8A and 8F; and Economic Policy (“ECO”) 7A. Petitioner contends that the Plan Amendment is inconsistent with some of those same policies, as well as other policies. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1G, which states: Business developments shall preferably be placed in clusters or nodes in the vicinity of major roadway intersections, and not in continuous strips or as isolated spots, with the exception of small neighborhood nodes. Business developments shall be designed to relate to adjacent development, and large uses should be planned and designed to serve as an anchor for adjoining smaller businesses or the adjacent business district. Granting of commercial or other non-residential zoning by the County is not necessarily warranted on a given property by virtue of nearby or adjacent roadway construction or expansion, or by its location at the intersection of two roadways. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with the allowance in Policy LU-1G for small neighborhood nodes based on its relationship to the adjacent rural residential and agricultural community, especially given the evidence that such adjacent community lacks existing options for gas and convenience goods. He further explained that use of the word “preferably” in Policy LU-1G indicated a preference, not a bright-line rule or requirement, and that the Comprehensive Plan does not contain a definition of “small neighborhood nodes” or any interim step for designating such nodes. Further, the County’s expert, Alex David, opined that the Plan Amendment is not inconsistent with Policy LU-1G. He first noted that locating business developments in clusters or nodes is preferable, but not compulsory. In addition, he explained that the policy allows for small neighborhood nodes, and that this Plan Amendment fits the concept of a small neighborhood node in terms of its location, scale, and function: Location: The Plan amendment is limited to a portion of a quadrant of the intersection of two roads adjacent to a rural community, so it will not be linear development along the Krome Avenue corridor; Scale: The Plan amendment is considered “small-scale” under the Florida Statutes because it involves less than 10 acres in land area. In addition, the Declaration of Restrictions accepted by the County Commission restricts the extent of land uses (other than those permitted under the AU Zoning District) to a convenience retail limited to a maximum of 6,000 square feet and a gas station with 15 fueling positions; and Function: Neither the Comprehensive Plan nor the County Code define the term “convenience store.” However, many other communities define this use as a small retail establishment intended to serve the daily or frequent needs of the surrounding neighborhood population by offering for sale prepackaged food products, household items, over-the-counter medicine, newspapers and magazines, freshly prepared foods, and even access to an ATM. In rural neighborhoods such as those surrounding the location of the Plan Amendment, a convenience store associated with a gas station is often the only place nearby to buy such items. These stores often also serve as a community gathering spot. Based on these characteristics, Mr. David opined that the Plan Amendment would create a small neighborhood node with a gas and convenience use for the surrounding rural farm community, similar to the nodes to the south along Krome Avenue that serve the surrounding communities there. Mr. David also contradicted Petitioner’s contention that the Comprehensive Plan contains a process for designating nodes. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1O, which states: “Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe in the Agriculture Areas outside the Urban Development Boundary, through its Comprehensive Plan amendment process, regulatory and capital improvements programs and intergovernmental coordination activities.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with LU-1O because the development contemplated by the Plan Amendment is designed to serve the adjacent existing rural neighborhoods to the southwest that are in need of gas and convenience goods. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-1O. He explained that this policy aims to ensure that development does not happen in isolation and occurs, instead, where other development already exists. Because the Plan Amendment site is proximate to a contiguous, and nearly continuous grid of, existing development consisting of rural estate residential and small-scale residential farms, the Plan Amendment does not contravene this policy or its purpose. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1P, which states: While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism and agritourism related to the area's agricultural and natural resource base including Everglades and Biscayne National Parks. Petitioner offered no evidence or expert testimony to support the contention that the Plan Amendment is inconsistent with Policy LU-1P. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-1P because that policy allows for alternative land uses that are compatible with agricultural uses, such as Krome’s plans for the store to support local agricultural uses and agri-tourism by selling fresh fruit from local groves and diesel for smaller scale agricultural farmers, as provided in the Declaration of Restrictions. Mr. David opined that the Plan Amendment is not inconsistent with that policy. He explained that the Plan Amendment pertains only to a very small portion (less than six gross acres) of a larger agricultural site, which will continue to be actively used for agriculture, and there is no evidence that the Plan Amendment will impair the viability of the agricultural economy in the County. As Mr. David explained, the County previously determined that the amount of land that is needed to maintain a “viable” agricultural industry is approximately 50,000 acres, and according to the County, the County has about 55,206 acres available. The 5.97 gross acres (approximately 4.6 net acres) of land that the Plan Amendment directly impacts is miniscule in comparison. Mr. David also explained how the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses, as well as promoting economic development in the County’s agricultural area. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1S, which states: The Miami-Dade County Strategic Plan shall be consistent with the Comprehensive Development Master Plan (CDMP). The Miami-Dade County Strategic Plan includes Countywide community goals, strategies and key outcomes for Miami-Dade County government. Key outcomes of the Strategic Plan that are relevant to the Land Use element of the CDMP include increased urban infill development and urban center development, protection of viable agriculture and environmentally-sensitive land, reduced flooding, improved infrastructure and redevelopment to attract businesses, availability of high quality green space throughout the County, and development of mixed-use, multi-modal, well designed, and sustainable communities. Petitioner offered no expert testimony to support this contention. Petitioner’s reliance on LU-1S is misplaced because that provision requires the Miami-Dade County Strategic Plan to be consistent with the Comprehensive Plan, not the other way around. As such, this policy is irrelevant to the Plan Amendment, as both Mr. Metcalf and Mr. David testified. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-2B, which states: Priority in the provision of services and facilities and the allocation of financial resources for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Infill Area and Transportation Concurrency Exception Areas. Second priority shall be given to serve the area between the Urban Infill Area and the Urban Development Boundary. And third priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non- urban areas. Areas designated Environmental Protection shall be particularly avoided. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-2B because that policy provides a specific exception for improvements that will serve “localized needs of these non- urban areas,” such as the proposed gas station and convenience store. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-2B because it does not request, require, or necessitate the expansion of the Urban Development Boundary (“UDB”) or the Urban Expansion Area (“UEA”), nor does it involve or propose the extension of urban services or facilities outside the 2020 UDB or into the Agriculture and Open Land areas. Mr. David explained that gas stations and convenience stores are not “services or facilities,” as those terms are used in the Comprehensive Plan, nor would the gas station or convenience store allowed by the Plan Amendment be an “urban” use. Therefore, urban services and facilities that support or encourage urban development in Agriculture or Open Land areas will continue to be avoided. Mr. David further explained, as County planning staff recognized, the Plan Amendment will not impact key infrastructure and Levels of Service (“LOS”) that exist within the UDB (including, but not limited to, water and sewer, transportation, solid waste, etc.). Although County staff found that, under the Plan Amendment, fire and rescue services for the Property would not meet national industry standards, Mr. David refuted that concern, explaining that the Comprehensive Plan does not require compliance with national industry standards for fire and rescue, nor does the Plan Amendment violate a County LOS standard for fire and rescue. Petitioner contends that the Plan Amendment is inconsistent with Objective LU-7, which states: Miami-Dade County shall require all new development and redevelopment in existing and planned transit corridors and urban centers to be planned and designed to promote transit-oriented development (TOD), and transit use, which mixes residential, retail, office, open space and public uses in a safe, pedestrian and bicycle friendly environment that promotes mobility for people of all ages and abilities through the use of rapid transit services. The Plan Amendment is not located in an existing or planned transit corridor or urban center. Objective LU-7 is not applicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8C, which states: “Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to protect and promote agriculture as a viable economic use of land in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8C. He explained that the policy contained a general directive for the County to promote and protect agriculture, but did not prohibit small scale plan amendments that respond to the existing needs of the surrounding agricultural and rural communities, such as the Plan Amendment. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8C. Again, he explained that the Plan Amendment pertains only to a small portion of the Parent Tract, which will continue to be actively used for agriculture; that the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses; and that those uses will promote economic development in the County’s agricultural area. He also explained that removing the Property from agricultural production would not reduce the number of acres in agricultural production below the threshold needed to sustain agriculture as a viable economic activity in Miami-Dade County. Mr. David further explained that there is no provision in the Comprehensive Plan categorically prohibiting the removal of agricultural land from agricultural production. Petitioner argued that the Plan Amendment would further degrade existing agricultural uses in the area because it could tempt ATV riders to trespass and ride their ATVs over nearby agricultural lands. Mr. David found that speculative concern immaterial to the analysis required by the Comprehensive Plan. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8E, which states: Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated for consistency with the Goals, Objectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at or above adopted LOS Standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; Enhance or degrade environmental or historical resources, features or systems of County significance; and If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective LU- 7, herein. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8E. As an initial matter, Mr. Metcalf explained that this Policy only requires an evaluation of “the extent to which” the subparts are satisfied, and does not set a threshold or a specific methodology. Regarding subpart (i), Mr. Metcalf explained the Plan Amendment addressed an existing and future need for a gas station, convenience retail products, fresh food, and supporting products for the agricultural industry within the general area, which currently lacks these offerings. In addition, he opined that the gas station would respond to a critical need to reduce fuel shortages during hurricane evacuations. As to subparts (ii-iv), Mr. Metcalf opined that the Plan Amendment would not impede provision of services at LOS standards; would enhance hurricane evacuations; would be compatible with nearby uses because the Parent Tract would continue to be used for agriculture, which would serve as a buffer between the Subject Property and adjacent uses; and that the Subject Property does not contain any environmental or historical resources, features, or systems of County significance. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8E. He explained, first, that Krome submitted with its application a Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf, establishing that the Plan Amendment will help satisfy an existing deficiency in the Plan map by facilitating a convenience retail opportunity to serve the needs of the local population, who currently must drive on Krome Avenue at least three miles one way south of this location to SW 184th Street, or more than eight miles north, and then east on Kendall Drive (SW 88th Street), to reach the nearest equivalent services. In addition, there was significant support for the application by area residents, as evidenced by the petition submitted by Krome and the public testimony in favor of the Plan Amendment. Second, he explained that the Plan Amendment will not impede the provision of services at or above adopted LOS standards, as County staff noted in its report. On the contrary, with regards to traffic, the Plan Amendment may facilitate a reduction in trip generation and vehicle-miles traveled (“VMT”) on Krome Avenue from the existing residential community to the west and south, by providing a nearby convenience that may be reached without driving several miles north or south on Krome Avenue. Third, he opined that the Plan Amendment is compatible with abutting and nearby land uses and would protect the character of established neighborhoods—the large-scale solar power facility to the north, and the remainder of the 50-acre parcel that will remain in agricultural use to the west and south—will provide an appropriate buffer for the surrounding rural estate residential uses. Krome Avenue at this location is a 4-lane divided arterial with a 40-foot median, which also provides a significant buffer between the Plan Amendment site and the uses across Krome Avenue. In its evaluation, County staff recognizes that the “Business and Office” land use designation and the proposed development could be “generally compatible” with the existing agricultural uses and FPL’s Solar Energy Center. Mr. David opined that the assertion that the land use re-designation “would set a precedent for the conversion of additional agricultural land to commercial uses” is speculative and not only unproven, but refuted by the existing commercial development along the Krome Avenue corridor. The existing isolated uses along Krome Avenue, some of which are the same or similar uses that would be allowed by the Plan Amendment, are long-standing and have not led to urban development or infill in the area. Mr. David also testified that there are “very stringent policies” that restrict further development from occurring along Krome Avenue in this area, including Policies LU-3N and LU-3O. Fourth, Mr. David explained that the Plan Amendment will not degrade historical or archaeological resources, features, or systems of County significance, which is further confirmed by County staff’s own analysis. Regarding impacts to environmental resources, before any development proceeds on the Subject Property, the applicant must apply to all relevant state, regional, and local agencies for the applicable and necessary permits and variances, and if the applicant is unable to obtain such approvals due to environmental concerns, the project will not be permitted to proceed. In other words, while there is no evidence of adverse environmental impacts at the plan amendment stage, the applicant will have to satisfy all environmental requirements in subsequent stages of the development process to proceed with the project. Lastly, Mr. David explained that the Plan Amendment site is not located in an Urban Center or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period headways of 20 or fewer minutes; thus, the fifth and final consideration of Policy LU-8E is inapplicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8G, which provides criteria for plan amendments that add land to the UDB. Because the Plan Amendment does not add land to the UDB, Policy LU-8G is irrelevant to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy CHD-4A, which states: “Promote increased production and expand the availability of agricultural goods and other food products produced in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy CHD-4A because the proposed store would support the local sale and consumption of goods from the community. Similarly, Mr. David opined that the Plan Amendment is not inconsistent with Policy CHD-4A. He explained that there is no metric associated with this aspirational policy, and noted that the approval of the Plan Amendment pertains only to a small portion of a larger agricultural site, the balance of which will continue to be protected and promoted for agricultural use. Moreover, he explained that the uses allowed by the Plan Amendment through the Declaration of Restrictions are limited to those permitted in the AU Zoning District, plus a fueling and convenience retail service use, which could support the sale and consumption of local agricultural goods. Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6D, which states: “Areas in Miami-Dade County having soils with good potential for agricultural use without additional drainage of wetlands shall be protected from premature urban encroachment.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment is not inconsistent with the policy because it affects only a five-acre tract, and because the Plan Amendment was justified by the existing demand. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6D. He noted, first, that according to the County, the Plan Amendment site does not contain jurisdictional wetlands. Second, he explained the Plan Amendment will not result in premature urban encroachment–i.e., a poorly planned expansion of low-density development spread out over large amounts of land, putting long distances between homes, stores, and work, and requiring an inefficient extension of urban infrastructure and services. According to Mr. David, the adopted Plan Amendment is the opposite of these characteristics because: a) it pertains to a very small site, with a range of permitted uses that is specifically limited by the accepted Declaration of Restrictions; b) it will reduce the distance between residents’ homes and local-serving convenience services; and c) it does not involve the extension of urban infrastructure and services. In addition, Mr. David opined that the term “premature” does not apply to the Plan Amendment, as evidenced by the public support of area residents for the gas and convenience uses and the applicant’s expert analysis of area need. Furthermore, Mr. David established that a gas station with a convenience store is not an “urban” use, and, therefore, the Plan Amendment does not allow “urban encroachment.” Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6E, which states: “Miami-Dade County shall continue to pursue programs and mechanisms to support the local agriculture industry, and the preservation of land suitable for agriculture.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with Policy CON-6E because it affected less than five net acres, only 10 percent of the Parent Tract, and would provide convenience goods for the community and local farmworkers. He further explained, again, that the policy does not prohibit small-scale plan amendments that respond to a local need. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6E. He explained that the Plan Amendment does not prevent Miami-Dade County from continuing to pursue programs and mechanisms to support the local agriculture industry and the preservation of land suitable for agriculture. Moreover, the addition of the permitted uses on a small portion of an otherwise agricultural site, which will continue to be used for agricultural production, is not inconsistent with this policy. Urban Sprawl Petitioner alleges that the Plan Amendment fails to discourage the proliferation of urban sprawl, contrary to section 163.3177(6)(a)9, Florida Statutes. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment would not constitute scattered or discontinuous development because, inter alia, it would introduce uses designed to serve the existing nearby community. Mr. Metcalf opined that the Plan Amendment would allow for non-vehicular trips due to the proximity of the rural neighborhoods and would internalize vehicular trips without requiring access to Krome Avenue, consistent with strategies to discourage urban sprawl. Finally, Mr. Metcalf opined that at least six of the eight criteria provided in section 163.3177(6)(a)9.B. were satisfied by the Plan Amendment. Specifically, he opined that: The Plan Amendment will not have an adverse impact on natural resources or ecosystems; The Plan Amendment promotes the efficient and cost-effective provision or extension of public infrastructure and services because the subject property will not be served by public infrastructure and is already served by emergency services, and because it will reduce demand on roads from nearby neighborhoods, thereby reducing operational and maintenance costs; The Plan Amendment promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities by providing convenience goods and services within walking or biking distance to nearby residential neighborhoods and local farm workers; The Plan Amendment promotes the conservation of water and energy by reducing water demands as compared to the former use of the Property, and by reducing existing trip lengths otherwise required to access goods and services; The Plan Amendment indirectly supports the preservation of agricultural areas and activities by providing diesel fuel, selling locally grown produce and other agriculturally supportive products, and by maintaining the agricultural use on the remainder of the Parent Tract; The Plan Amendment creates an improved balance of land uses by providing convenience goods and gasoline/diesel fuel in response to the demands of the neighborhood residents and local farm workers; The Plan Amendment remediates the existing, single use, urban sprawl development pattern by providing a commercial use in a compact urban form at an intensity to allow residents and local farm workers to obtain goods, gasoline, and diesel fuel without leaving the neighborhood; and The Plan Amendment does not impact the criterion for open space, natural lands and public open space. Similarly, Mr. David opined that the Plan Amendment would not result in the proliferation of urban sprawl; he analyzed each of the statutory indicators of urban sprawl in section 163.3177(6)(a)9.A. and found that none are present, meaning that the Plan Amendment does not fail to discourage the proliferation of urban sprawl. In addition, he found that four of the statutory indicators of the Plan Amendment that would discourage the proliferation of urban sprawl, are present. He found that the remainder were not applicable. Specifically, Mr. David opined that the Plan Amendment would meet the following four indicators: Directs or locates economic growth and associated land development to geographic areas of the community in a manner that does not have an adverse impact on and protects natural resources and ecosystems. As Mr. David explained, agriculture is a human development activity. Therefore, the Parent Tract is not in a natural state, nor does it contain natural resources and ecosystems. According to County staff’s own report, the Subject Property does not feature native wetland communities, specimen trees, endangered species, or natural forest communities. There are no jurisdictional wetlands, no water courses, and no federally designated critical habitat on the Subject Property or adjacent properties. The Subject Property is not in a wellfield. Other environmental considerations, including water and stormwater management, and flood protection, are directed through the pertinent permitting agencies at the appropriate time to ensure that any future development minimizes adverse impacts on the general environment. Promotes the efficient and cost-effective provision or extension of public infrastructure and services. As Mr. David opined, the Plan Amendment does not involve or require the provision or extension of County-owned public infrastructure and services. This, therefore, meets the definition of the terms “efficient” and “cost- effective,” since the County will not have to invest time or funding in the extension of such infrastructure and services. The County staff’s own report finds, as a fact, that the amendment would not negatively impact existing infrastructure and service within the UDB. Moreover, the contention that fire and rescue services would not meet national industry standards is irrelevant because: (1) the Comprehensive Plan does not adopt the national industry standard as the LOS; and (2) the Plan Amendment would not negatively impact current estimated travel times for fire and rescue services. Further, as Mr. David testified with respect to the first set of urban sprawl indicators, the Plan Amendment would not disproportionately impact fire and rescue services. V. Preserves agricultural areas and activities, including silviculture, and dormant, unique, and prime farmlands and soils. As Mr. David explained, the Plan Amendment preserves agricultural areas and activities because the balance of the Parent Tract will continue to be preserved as crop land, and because the uses allowed in the proffered Declaration of Restrictions include agricultural uses and a fueling station that could include the sale of diesel, which is in demand for agricultural uses. VII. Creates a balance of land uses based upon demands of the residential population for the nonresidential needs of an area. As Mr. David opined, today the area does not have a balance of land uses, as it is entirely dominated by rural estate residential and agricultural uses. By introducing a gas and convenience use supportive of agriculture, the Plan Amendment will create a better balance of land uses in the area. Today, the local population does not have access to any type of convenience shopping in the vicinity of this location, because it is situated along an 11-mile gap between such uses on Krome Avenue. Contrary to the contention that the applicant failed to demonstrate the use is needed or required by residents, the applicant provided written evidence of support from over 100 neighbors about the need for the proposed nonresidential use and its benefit to their quality of life. Moreover, according to the public hearing record, many residents also attended the public hearings to express their support for the Plan Amendment. Further supporting the finding of need, the corporate representative of Krome testified in detail about the neighborhood’s need for a gas station and convenience store. Data and Analysis Finally, Petitioner alleges that the Plan Amendment “is not based upon the relevant and appropriate data and analysis provided by the County planning staff at the Department of Regulatory and Economic Resources, as required by section 163.3177(1)(f), Florida Statutes.” Petitioner also alleges that the Plan Amendment is based on “the convenience of access to fuel for private property owners in the area and not on relevant data and analysis.” Petitioner’s allegations, both in the Amended Petition and the Joint Pre- Hearing Stipulation, are conclusory and do not supply any discernible rationale for why she contends the Plan Amendment is not based on relevant and appropriate data and analysis. Petitioner offered no evidence or expert testimony to support these contentions. By contrast, Mr. Metcalf opined that the Plan Amendment is based on “relevant and appropriate data and analysis” supporting the Plan Amendment contained in the record. Namely, the following sources constitute such “relevant and appropriate data and analysis”: Mr. Metcalf’s Comprehensive Plan Consistency Evaluation, which contains 78 pages of comprehensive data and analysis supportive of his consistency findings; a petition of support for the Plan Amendment signed by over 100 members of the surrounding community; testimony from community members at various public hearings indicating a need for the Plan Amendment; and a letter from the Dade County Farm Bureau stating that the organization had no objection to the Plan Amendment Further, Mr. David also opined that the Plan Amendment is based on, and supported by, appropriate data and analysis. He explained that the video recordings and the legislative history of the adoption hearings related to the disposition of the Plan Amendment application clearly show that the County Commission duly considered the analysis provided by County staff before making a decision. Commissioners asked staff members thoughtful questions and discussed various findings of the staff report throughout the public hearings. Mr. David explained that County staff’s input is not the only criterion upon which elected officials may rely. Indeed, relevant data and analysis were also submitted by the applicant as part of the Plan Amendment application, including the Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf. The Consistency Evaluation study relies on professionally accepted data sources and Mr. Metcalf’s extensive expertise to provide a sound rationale for the requested Plan Amendment. The County Commission considered, and reacted in an appropriate way to, such relevant and appropriate data. The County Commission received and considered community input in the form of public testimony, much of which was in support of the Plan Amendment, as well as the applicant’s petition of support from members of the surrounding community expressing need for local gas and convenience uses. Finally, Mr. David’s expert report itself supplies further data and analysis supporting the Plan Amendment. Other Allegations Petitioner alleges that the Plan Amendment “depletes the Urban Development Boundary and Urban Expansion Areas.” The Comprehensive Plan includes the UDB to distinguish the area where urban development may occur from areas where it should not occur. The Comprehensive Plan defines the UEA as “the area where current projections indicate that further urban development beyond the 2020 UDB is likely to be warranted sometime between the year 2020 and 2030.” Petitioner fails to identify any inconsistency between the Plan Amendment and any UDB or UEA policies based on her assertion that depletion will occur. Moreover, there are no goals, objectives, or policies in the Comprehensive Plan that address the concept of “depleting” the UDB or UEAs. Petitioner also alleges that the County adopted the Plan Amendment “to benefit[] other private property owners and special interests.” Petitioner introduced no evidence to support this allegation, and the allegation is also irrelevant to whether the Plan Amendment is “in compliance.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Miami-Dade County Ordinance No. 20-47, on May 20, 2020, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mary K. Waters Post Office Box 700045 Miami, Florida 33170 Christopher J. Wahl, Esquire Miami-Dade County Attorney's Office Suite 2810 111 Northwest 1st Street Miami, Florida 33128 Alannah Shubrick, Esquire Shubin & Bass, P.A. Third Floor 46 Southwest 1st Street Miami, Florida 33130 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2021. James Edwin Kirtley, Assistant County Attorney Miami-Dade County Attorney's Office Stephen P. Clark Center, Suite 2810 111 Northwest First Street Miami, Florida 33128 Mark E. Grafton, Esquire Shubin & Bass Third Floor 46 SW 1st Street Miami, Florida 33133 David Winker, Esquire David J. Winker, P.A. 2222 Southwest 17th Street Miami, Florida 33145 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The issue in this case is whether the City's Future Land Use Map (FLUM) Amendment for Site 7 is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The City of Groveland is located in Lake County, mostly north of State Road 50 and the northeastern corner of the Green Swamp. The core of the City is in the vicinity of the intersections of State Road 50 with State Road 33 (to the south) and State Road 19 (to the north). There are many lakes and wetlands within the City and surrounding the City in Lake County. The Green Swamp was designated an Area of Critical State Concern by the Florida Legislature in 1979. It consists of approximately 500 million acres south from the City through south Lake County and into Polk County. It is bordered on the east by U.S. Highway 27 and on the west extends over the County line into Sumter County. The Green Swamp is important as a statewide resource to Florida because it is one of the last remaining intact ecosystems in Florida. It is one of Florida's largest wetland systems, second only to the Everglades. It includes the headwaters of five rivers, and provides recharge to the Floridan Aquifer, the primary source of drinking water for Florida. It is an ecologically and hydrologically significant resource. It provides habitat for many endangered species including gopher tortoise, scrub jay, and wood stork. In 2003, the City annexed the parcels known in this proceeding as Sites 4, 5, 6, and 7 from Lake County into the City. All of the parcels are located east of State Road 33 and south of State Road 50 and within the boundaries of the Green Swamp. Sites 4, 5, and 6 total 171.1 acres of wetlands bordering Sumner Lake and the City's boundaries before annexation. Site 7 consists of 361 acres (264 acres of uplands and 97 acres of wetlands). (There is an approximately 70-acre County "enclave" in the middle of Site 7 which remained in Lake County.) Site 7 currently is used to grow citrus. It is connected to the City through the other three sites and Sumner Lake. At the time of annexation (and until City plan amendments are found to be "in compliance"),4 the future land use designation for Sites 4, 5, and 6 was Lake County Rural/Conservation. Site 7 had and still has its Lake County future land use designations. Its 97 acres of wetlands are designated Lake County Rural/Conservation, which allows one dwelling unit per 10 acres, while the 264 acres of uplands are designated as Lake County Transition, which allows one unit per 5 acres, or one unit per acre if the “timeliness” criteria under the Lake County Comprehensive Plan are met. These parcels were the subject of the City's FLUM amendments adopted on August 2, 2004. The FLUM amendments changed the designation of Sites 4, 5, and 6 from County Rural/Conservation to City Conservation. These City designations have been found to be "in compliance." The FLUM amendments also changed the future land use designation of Site 7's 97 acres of wetlands to City Conservation, and its 264 acres of uplands to City of Groveland Green Swamp Single Family Rural Development (GSRD), which allows two dwelling units per acre. With a transfer of development rights from the undevelopable wetlands to the developable uplands, which would be allowed under both the City's and the County's comprehensive plans, the maximum number of dwelling units allowed on Site 7 under the City's designation would increase to 532, up from the 57 allowed under the current County designations. Compliance Issues As indicated in the Preliminary Statement, DCA's Petition and SOI alleged that the City's Plan, as amended by the Site 7 FLUM amendment, is not "in compliance" because: (1) it is inconsistent with Rule Chapter 9J-5 because it fails to discourage the proliferation of urban sprawl, as required by Rule 9J-5.006(5); (2) it is internally inconsistent with the City's Future Land Use Element (FLUE) Policies 1-1.10.1 (land use allocation), 1-1.10.2 (promoting orderly compact growth), and 1-1.10.3 (coordination with Lake County to reduce urban sprawl), and Intergovernmental Coordination Element (ICE) Policy 7-1.1.3 (land use planning of adjacent lands); (3) it is inconsistent with the Green Swamp Guiding Principles; (4) it is inconsistent with Section 163.3177(6)(a) and (8), Florida Statutes, and Rule 9J-5.005(2)(a), because it does not react appropriately to the data and analysis on environmental site suitability; and (5) it is inconsistent with State Comprehensive Plan Public Facilities Goal 17(a) and Policies 17(b)1.-2. Urban Sprawl It is no longer disputed that there is a demonstrated need for the additional residential development allowed by the Site 7 FLUM amendment. The real contention by DCA is that the development should not occur at Site 7. DCA's urban sprawl argument focuses on five of the 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl": 4. 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 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. Fla. Admin. Code R. 9J-5.006(5)(g). Indicator 4 DCA's argument as to Indicator 4 is two-fold: Site 7 is surrounded by rural land; and increasing densities will harm the natural resources of the Green Swamp. Site 7 is immediately surrounded by generally rural uses. As indicated, wetlands and Sumner Lake are to the immediate northwest. Directly to the north of the northernmost portion of Site 7 is a sprayfield owned and operated by the City of Clermont. North of the sprayfield is an open water body. The east side of Site 7 adjoins a marshy area on the west side of Lake Palatlakaha. The south side of Site 7 abuts CR 565 and low wetlands areas, with Lake Wash and other rural lands and wetlands farther south. While immediately surrounded by rural lands (City Conservation, County Rural/Conservation, and County Transition), Site 7 is located approximately 3,000 feet (not three miles, as DCA's primary witness on this issue believed as late as her deposition in this case) south of State Road 50, a highly traveled, major road that connects West Central Florida to East Central Florida. Site 7 is in a fast-growing area less than two miles southeast of the center of the City. Immediately to the north of Sumner Lake is the Westwood residential subdivision which lies along the southern boundary of State Road 50. Existing homes are scattered around the sprayfield. Westwood is located within the City’s boundaries and in the Green Swamp. It has a future land use designation of Green Swamp Single Family Low Density Development (GSLD), which allows up to four single-family detached homes per acre. This corresponds to the Lake County Ridge designation it had at the time it was annexed into the City. Westwood currently is under construction, with many homes already occupied. Along the northern side of State Road 50 north of Westwood is a parcel within the City designated on the FLUM as Commercial, which is proposed to be used for a Publix grocery store, and the Green Valley Country Club, an existing golf course community. To the west of Site 7 is an existing golf course and water ski community known as the Swiss Ski School. It is located within unincorporated Lake County in the Green Swamp and has a Planned Unit Development (PUD) approval for 296 residential units. To the west of the Swiss Ski School lie Stewart Lake and Olsen Lake and their associated wetlands, which are in the Green Swamp in the unincorporated County and have County designations of Rural/Conservation and Transition. Farther west, along State Road 33 and still in the Green Swamp, lie developments having FLUM designations of GSSFLD allowing up to four units per acre. Both those developments lie within City limits. To the south of Site 7, and in unincorporated Lake County, with a County designation of Transition, lies a subdivision along Monte Vista Road which is vested for residential development partly at a density of two units per acre and partly at one unit per acre. Although there will be wetlands and Sumner Lake in City Conservation designations between Site 7 and developments to the north and west in the City, leapfrog development is not a concern for Site 7 and its surrounding area. To the extent Site 7 is separated from other urban or suburban uses in the City by lakes, wetlands, and conservation lands, no urban, suburban or even rural development of those conservation lands should be expected, so that "leaping over" those undeveloped lands should not be considered an indicator of sprawl. For these reasons, it is found that the Site 7 FLUM amendment is not premature. Nor is the conversion from agricultural use to residential use poorly planned. The development will be compact and orderly, and public facilities and services are available. Natural resources already receive a significant amount of protection in the plan. The development of Site 7 will promote conservation of natural resources by allowing only uplands to be developed onsite and allowing a density of up to two units per acre. A lower density would be an inefficient use of developable land. An inefficient land use pattern encourages the premature conversion of environmentally significant lands. Indicators 6 and 7 DCA's arguments as to Indicators 6 and 7 essentially are that some public facilities and services will have to be extended to Site 7, that there are places in the City capable of development using only existing public facilities and services, and that the City has planned for future public facilities and services elsewhere--namely, in the North Overlay, which is described below. As for existing public facilities and services (Indicator 6), development under the site 7 FLUM amendment will receive the same public services of law enforcement, fire, emergency services, and schools as are currently available to Site 7, at a lower residential density, under the existing Lake County Transition land use. Pursuant to an interlocal agreement with Lake County, the City already provides law enforcement services not only to Site 7 and surrounding areas in the City, but also to adjacent areas in unincorporated Lake County. As the City already provides public services in the area, it will be more cost-efficient to spread those costs among more homeowners. The proposed amendment will allow more homeowners to share these costs. DCA's only response to these facts, some of which were not known by DCA's expert witness, was that "the increased population on the site may require additional staff and facilities to serve the population." DCA's PRO, at 41. As for water and sewer, as indicated, a connection to central water and sanitary sewer is available at State Road 50, approximately 3,000 feet from Site 7 (a fact also not known by DCA's expert witness until shortly before the hearing). The developer will be required to pay for the cost of the new lines to Site 7. After those lines are installed, nearby property owners can voluntarily connect to central water and sewer. A few of the nearby property owners who have septic tanks have indicated an interest in connecting to the Site 7 sewer lines. For these reasons, the proposed amendment would result in an efficient use of central water and sanitary sewer facilities. As for future public facilities and services (Indicator 7), in 2003, as a result of a settlement agreement between the City and DCA on the City's 2003 plan amendment, the City proposed and adopted the "Groveland North Overlay" area and associated policies as a plan for future growth. The North Overlay was found to be "in compliance," is part of the City's FLUE, and is designated on Map 1-7 of the City’s FLUM series. The North Overlay is located to the north of the existing City limits and consists of several thousand acres. It is identified as an area in which future annexations are likely to take place in order to meet growth needs. The area is adjacent to parcels already annexed by the City, designated for urban densities, and planned for public facilities. It allows for a mix of uses. It shows that the City had identified a growth strategy to meet its need for the planning timeframe and beyond. It was established to ensure that, as land in the North Overlay was annexed into the City, new development would not develop as urban sprawl, but rather would be managed in a way which created a more effective land use pattern. While adopting the North Overlay, the City has a policy to annex land only on a voluntary basis. It does not exercise its rights under Section 171.0413, Florida Statutes, to require contiguous, compact unincorporated territory to annex. For this reason, it is difficult for the City to foresee with certainty which lands will annex into its municipal boundaries. In addition, starting in the mid-1990's, before adopting the North Overlay, the City began to annex land to the south in the Green Swamp. At that time, the City began the process of amending its comprehensive plan to include provisions to comply with the Principles for Guiding Development in the Green Swamp. In late 2000, the City embarked on a study to guide development and facilitate municipal expansion in the Green Swamp. The DCA provided funding for the study through a technical assistance grant. DCA also provided feedback for the study. The City hired a private consulting firm to do the study and produce a series of four quarterly reports. The final report is entitled "City of Groveland Small Area Study Final Report November 1, 2001." The Small Area Study considered an area of approximately 2,580 acres in the Green Swamp, which the City reasonably projected may be annexed. The geographic boundaries of the study were larger in the first three phases of the study, but were constricted for the final report at the request of DCA planner, Bob Dennis, to be closer to State Road 33. In addition, future annexations were projected to be phased, with areas closer to State Road 33 projected to occur before areas farther away from there. Site 7 is even farther away from State Road 33 and entirely outside the final boundaries of the Small Area Study. But the Small Area Study was not intended to bind the City, or restrict the City's annexation rights and powers, or change the City's policy of voluntary annexation. In other words, the projected annexations and phasing did not preclude consideration of out- of-phase or out-of-area annexations. The DCA grant required the Small Area Study to evaluate the area south of Groveland using several criteria, including upland area, utility availability and expansion, road/transportation network, Lake County land use designation, current land use activities, environmental assessment impacts, and the Green Swamp rules. The Small Area Study recommended that the City adopt two land use categories to apply to residential development in the Green Swamp: a land use category allowing a maximum of four units per acre, and another land use category allowing a maximum of two units per acre. A requirement of 60 percent open space and limitations on impervious surface for residential development also were recommended. For the protection of the Green Swamp and the Floridian Aquifer, the study also recommended that clustered development be encouraged and that central water and sewer be provided. The Small Area Study also recommended that wetlands be designated a Conservation land use. The Small Area Study also recommended that the plan require an upland buffer of 50 feet from the edge of the wetland line and that all development be prohibited in wetlands and floodplains. The City adopted those recommendations, as well as others. All of those plan amendments were found be DCA to be "in compliance." One of those amendments, FLUE Policy 1.3.11, prohibits any structure in the Green Swamp to be located within fifty feet of a wetland line. This requirement exceeds the St. Johns River Water Management District (SJRWMD) performance standards for wetland buffers, which require an average uplands buffer of 25 feet, with a minimum buffer of 15 feet, as well as the standard included in the plan’s Conservation Policy 7.3.5, which applies only to development located outside of the Green Swamp, and requires an average buffer of 50 feet, with a minimum buffer of 25 feet. FLUE Policy 1.3.3 and Conservation Policy 7.13.1 prohibit all development in the wetlands and floodplains for land located within the Green Swamp. This policy is more stringent than the Guiding Principles and Rule 9J-5. Rule 28- 28.008(1) provides performance criteria for development in flood-prone areas, which may be adopted in land development regulations applying in Lake County portions of the Green Swamp. Rule 9J-5.013(3)(b) requires that land uses be distributed to allow wetland impacts to be minimized and mitigated. The City also implemented the recommendations of the Small Area Study for the two residential land use categories. As already indicated, the City adopted the GSLD land use category, allowing a density of up to four units per acre. FLUE Policy 1.1.17. It also adopted the GSRD land use category in FLUE Policy 1.1.18, allowing a density of up to two single family detached homes per acre. Both categories require that at least 60 percent of the property remain in open space and that development be clustered on the least environmentally sensitive portions of the site. The amendments adopting the GSLD and GSRD land use categories were found by DCA to be "in compliance" and consistent with the Principles of Guiding Development in the Green Swamp. However, those categories were not yet assigned to all land considered in the Small Area Study, much less land outside its final boundaries. The appropriateness of GSRD for Site 7 is the issue in this case. Indicator 8 DCA's arguments as to Indicator 8 essentially focus on the timeliness provision in Lake County's Transition designation and the requirement to provide some new public facilities and services as a result of the City's Site 7 FLUM amendment. See Finding 4, supra. Development of Site 7 under Lake County's Transition designation would be limited to one unit per five acres. Site 7 would not qualify for development at one unit per acre under the timeliness provision, which requires more than 40 percent of the surrounding area within a mile radius, and 60 percent of the surrounding area within a two-mile radius, to be developed at a density of one unit per acre or greater.5 In addition, development of Site 7 under the City's FLUM amendment would make one unit per acre development of the 70- acre County "enclave" within Site 7 timely, which in turn may make one unit per acre development of other County land in the vicinity timely under Lake County's Transition designation. In effect, DCA fears that the City's Site 7 FLUM amendment will have a "domino effect" that will trigger rapid, wholesale conversion of rural County Transition land that can be developed at one unit per five acres to Transition land "timely" for development at one unit per acre. But DCA did not prove that its fear is reasonable. DCA also fears that the City's Site 7 FLUM amendment ultimately will result in too much residential development in the Green Swamp. But future County land use designation changes that will harm the Green Swamp will be subject to challenge by DCA. In any event, whether the City's FLUM change at issue in this case is timely depends on a number of factors besides just the timeliness provision of Lake County's Transition designation. Indicator 8 addresses allowing "land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services," not just patterns or timing that increases those costs. (Emphasis added). DCA did not prove that extending water and sewer lines will be a disproportionately high cost for the developer to pay and pass on to homeowners. The water and sewer lines will be placed along an existing right-of-way and will be required to be extended approximately 3,000 feet to reach Site 7. Longer lines have been installed within City limits. Also, as discussed above relating to Indicators 6 and 7, the Site 7 FLUM amendment will allow a greater sharing of expenses of facilities and services. Indicator 9 As to Indicator 9, there is some merit to DCA's argument that the Site 7 FLUM amendment fails to provide a clear separation between rural and urban uses. But this is partly because of the lakes and wetlands between Site 7 and those urban uses. In addition, there are some urban-like uses between Site 7 and other urban uses in the City. See Finding 14, supra. Internal Consistency DCA's Petition and SOI alleged that the Site 7 FLUM amendment is internally inconsistent with other parts of the City's comprehensive plan addressing urban sprawl considerations: FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3; and ICE Policy 7-1.1.3. After the Site 7 FLUM amendment was adopted, the City further amended its comprehensive plan. FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3 became, respectively: Policy 1.1.2; Objective 1.6 and Policy 1.6.1; and Policy 1.6.2. ICE Policy 7-1.1.3 was replaced by ICE Policy 11.1.1, and there was no objection to substituting the new, equivalent policy for purposes of this proceeding. FLUE Policy 1.1.2 states: The City shall designate land use on the [FLUM] to accommodate needs identified within the Comprehensive Plan supporting document (i.e., Data Inventory & Analysis). The City shall allocate a reasonable amount of land above identified needs to avoid economic impacts which a controlled supply of land places on land values and market potential. As found, it is undisputed that the Site 7 FLUM amendment is internally consistent with this policy. In its response to the ORC, the City adequately demonstrated that it had a need for additional residential land to accommodate its future population. Moreover, the ratio between the City's future land use needs and population growth is only slightly more than 1:1. The Site 7 FLUM amendment does not create an over- allocation of land uses in relation to its estimated population growth. Again, DCA's challenge is to the location of Site 7. FLUE Objective 1.6 states: "Discourage urban sprawl through a future land use pattern which promotes orderly, compact development." FLUE Policy 1.6.1 states: Land use patterns delineated on the [FLUM] shall promote orderly, compact growth. The City shall encourage growth and development in existing developed areas where public facilities and services are presently in place and in those areas where public facilities can provide the most efficient service. Land shall not be designated for growth and development if abundant undeveloped land is already present within developed areas served by facilities and services." Based on the findings as to the urban sprawl indicators, supra, DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Objective 1.6 and Policy 1.6.1, much less that internal consistency is beyond fair debate. FLUE Policy 1.6.2 states: "The City of Groveland shall coordinate with Lake County through a Joint Planning Agreement to develop an areawide [sic] planning approach by 2010, taking into account environmental suitability, functional relationships and areas where public facilities and services are available or proposed to be available by year 2020." ICE Policy 11.1.1 states: "The City of Groveland shall continue to work closely with Lake County, Lake County School Board, other municipalities and affected regional, state and national government agencies to coordinate the comprehensive planning effort of the City with those agencies affected, through the provision of information and participation on committees and working parties." DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Policy 1.6.2 or ICE Policy 11.1.1, much less that internal consistency is beyond fair debate. To the extent that internal consistency requires that the local government to comply with the intergovernmental coordination provisions in its comprehensive plan when it proposes and adopts plan amendments, DCA also did not prove that the City failed to do so, much less that its failure to comply is beyond fair debate. The City regularly coordinates its plan amendments with Lake County. The City provided a copy of its 2004-02 amendment package to Lake County when the amendment was transmitted to DCA, as was indicated to DCA in the transmittal amendment cover letter to DCA. A local government’s submittal to an adjacent local government of a copy of an amendment under review is a common way for a local government to coordinate amendments with other local governments. The City also regularly coordinates planning issues with Lake County and other Lake County municipalities by attending meetings of their planning departments. Obviously, the Site 7 FLUM amendment was adopted long before FLUE Policy 1.6.2's 2010 target for a joint planning agreement. At this time, there is no voluntary joint planning strategy with which it can be argued that this amendment is inconsistent. At the hearing, DCA was permitted to also argue internal inconsistency with new plan provisions adopted in July 2005, and found to be “in compliance” in September 2005 (but not provisions adopted in September 2005 and under DCA challenge at the time of the hearing).6 Newly adopted Sanitary Sewer Objective 5.3 reads: MAXIMIZE EXISTING FACILITIES AND DISCOURAGE URBAN SPRAWL. The City shall maximize existing sanitary sewer facilities within its service area and promote compact efficient growth patterns. This objective must be read in conjunction with related Sanitary Sewer Policy 5.3.1, which requires all new development in the City to connect to the central sanitary sewer system, as well as with FLUE Policy 1.1.18, which requires all development in land designated GSRD to connect to central water and sanitary sewer utilities. Density is related to the ability to provide central sewer and water services. If a developer runs new water and sewer lines, which he must do at his own cost in the City, compact density will make development more economical for those services and will encourage an efficient land use pattern. A density of two units per acre is financially feasible for providing central water and sewer to Site 7, whereas the evidence was that a density of one unit per five acres, as urged by DCA, is not cost-effective for Site 7, at least given the developer's $6.5 million land acquisition cost. As the use of septic tanks is not an option in the City for any new development, a contiguous and compact form of development is essential not only for the property in question, but also for future development sites. Development of Site 7 will be connected to an existing City-owned and operated wastewater treatment plant, which has adequate capacity for the maximum of 532 homes allowed by the amendment. As the amendment will allow a compact development pattern of two units per acre and will maximize the use of an existing sewer facility, it is not internally inconsistent with ICE Objective 5.3. Newly-adopted ICE Objective 11.2 requires the City to implement a strategy to ensure the efficient provision of urban services, sound urban development, and accommodation of growth. The objective identifies negotiating interlocal agreements with Lake County and other local governments for joint planning areas and for providing public services. ICE Objective 11.2 requires future intergovernmental coordination and is not self-implementing. The Site 7 FLUM amendment is not internally inconsistent with ICE Objective 11.2. Guiding Principles The Guiding Principles were adopted by rule by the Administration Commission in 1974 and subsequently were approved by reference by the Legislature. See Rule 28-26.003; Ch. 79-73, § 5, Laws of Florida (1979). Preceding Rule Chapter 9J-5 and modern Florida statutory requirements for local comprehensive plans, the Guiding Principles actually were adopted to provide guidelines for the adoption of land development regulations. See Rule 28-26.004 and Rule Chapter 28-28, Land Planning-Part VII Boundary and Regulations for the Green Swamp Area of Critical State Concern-Lake County; § 380.0551(2), Fla. Stat. The City's plan contains goals, objectives, and policies that are consistent with the Guiding Principles. Nonetheless, DCA contends that the Site 7 FLUM amendment is inconsistent with the following objectives to be achieved under the Green Swamp Guiding Principles, Rule 28-26.003(1): Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. * * * (j) Protect the natural flow regime of drainage basins.7 One of the primary reasons for designating the Green Swamp as an area of Critical State Concern is its relatively high aquifer recharge capabilities. This results from the relative proximity of the surficial aquifer to the ground surface, together with relatively high rate at which water percolates through the soils overlying the surficial aquifer. The relatively high aquifer recharge rate results in a relatively high potentiometric surface in the underlying Floridan aquifer (Central Florida's primary drinking water source) and drives the groundwater system throughout Central and Southwest Florida. Florida contains many areas of no recharge, but low- to-moderate recharge characteristics are common throughout Florida. Within the Green Swamp, there are areas of low, moderate, and high aquifer recharge, depending primarily on the proximity of the surficial aquifer to the ground surface and the characteristics of the overlying soils. In the area of Site 7, the surficial aquifer is approximately 150 feet below ground surface. Site 7 has both Type A (sandy, upland) soils, which have a high infiltration rate, and Type B (wetlands) soils. The area has been regionally mapped by SJRWMD as having a net recharge rate of 0-4 inches (low) on the western side of the site, and 4-8 inches (moderate) on the eastern part of the site. As such, these recharge characteristics of Site 7 can be said to be "common" for the Green Swamp. As for groundwater contamination, a map of the Floridan Aquifer Groundwater Vulnerability admitted into evidence by DCA showed that the groundwater for Site 7 and the surrounding area are "more vulnerable" to contamination. However, DCA did not present a map for other parts of the Green Swamp or the rest of Florida for comparison purposes, and its expert witness on the subject was unable to quantify vulnerability or directly compare Site 7 to other parts of the Green Swamp and the rest of Florida. However, he did testify that areas of "high vulnerability" extend all the way to the west of Tallahassee and that the western part of the Green Swamp generally is more vulnerable to groundwater contamination than the eastern part, where Site 7 is, because the surficial aquifer is at or near the ground surface in the western part of the Green Swamp. As to the natural flow regime of drainage basins, Site 7 lies in the Oklawaha River Drainage Basin. The natural local drainage of Site 7 is into the Palatlakaha River via several smaller drainage sub-basins: Sumner Lake Outlet, Palatlakaha Reach, Lake Wash Outlet, and Pine Island Outlets. The Palatlakaha is a major tributary to the Oklawaha River. DCA did not prove that the Site 7 FLUM amendment will adversely impact the natural flow regime of the drainage basin Site 7 is in. DCA did not prove that Site 7 has any hydrologic or environmental characteristics that would require more protection than other parts of the Green Swamp. It follows that DCA did not prove a need for Site 7 to have a lower density than is allowed under the GSRD land use category already approved by DCA for the Green Swamp. Similar residential densities also have been approved in other parts of the Green Swamp. A plan's goals, objectives and policies must be considered when evaluating the impacts of development allowed by a land use category. The FLUM, the goals, objectives, and polices are interrelated. See § 163.3177(6)(a), Fla. Stat. The hydrologic features and functions addressed in the Guiding Principles are protected in the plan, and those protections have been found by DCA to be consistent with the Guiding Principles. Those plan provisions will guide development to ensure that the aquifer, wetlands, flood detention areas, groundwater, surface water, Lake Sumner, and the natural flow of the drainage basin will be appropriately protected. The essence of DCA's argument that the Site 7 FLUM amendment is inconsistent with the Guiding Principles is that, regardless of how much protection the plan's provisions afford, the Site 7 FLUM will allow approximately ten times the various impacts of development--e.g., impacts on wetlands, reduction of aquifer recharge due to increased impervious surfaces, water quality impacts, and water quantity impacts-- at one unit to five acres under the current Lake County Transition designation, so that adverse impacts are not minimized, and resources are not protected, as envisioned in the Guiding Principles. There are several flaws in DCA's argument, even assuming the impact factor of ten. First, the logical extension of DCA's argument would be that minimization and protection require no additional adverse impacts. If so, development at one unit per acre under Lake County Transition's timeliness provisions--a fivefold increase in impacts, under DCA's rationale--also would be inconsistent with the Guiding Principles. Second, planning should be based on reality,8 and DCA did not prove that residential development would occur on Site 7 at one unit to five acres. To the contrary, while continued development of small parcels in areas designated Lake County Transition is plausible, the evidence was that it is financially infeasible to develop Site 7 as a whole residentially at that density.9 For that reason, while ordinarily it is appropriate only to compare potential impacts from different possible land use designations, in this case it is appropriate to consider the impacts of the current use of Site 7 as an orange grove when deciding whether the Site 7 FLUM amendment is consistent with the Guiding Principles. The evidence was clear that, under all the criteria in the Guiding Principles cited by DCA, residential development under the Site 7 FLUM amendment is far preferable to the continued use of the property as an orange grove10--the likely if not absolutely clear result of maintaining Lake County's Transition designation.11 Third, as mentioned in Finding 57, supra, it was clear from the evidence that DCA has found residential land use designations of two units per acre and greater not only elsewhere in the Green Swamp, both in the City and elsewhere, to be consistent with the Guiding Principles, and DCA failed to explain why those densities would be consistent with the Guiding Principles elsewhere but not at Site 7. Again under this issue, DCA in effect fears that the City's Site 7 FLUM amendment will have a "domino effect" that will ultimately result in the entire Green Swamp being designated for two-unit per acre residential densities. But the entire Green Swamp is not like Site 7. Future County land use designation changes that actually will harm the Green Swamp will be subject to challenge by DCA, and it is unreasonable to assume that DCA will allow densities of two units per acre throughout the Green Swamp if it is allowed at Site 7. Environmental Suitability For essentially the same reasons DCA argues inconsistency with urban sprawl rules and plan provisions and with the Guiding Principles, DCA also contends that the City did not react appropriately to data and analysis indicating Site 7's alleged environmental unsuitability for residential development at two units per acre. Based on the previous findings, DCA did not prove that allegation.12 State Comprehensive Plan DCA alleges that the Site 7 FLUM amendment is inconsistent with the State Comprehensive Plan's Public Facilities goal and two related policies. Public Facilities Goal (a) addresses the need to protect substantial investments in existing public facilities. Related Policy (17)(b)1. provides incentives for developing land in a way that maximizes the uses of existing public facilities. Public Facilities Policy 17(b)2. promotes the "rehabilitation and reuse of existing facilities, structures, and buildings as an alternative to new construction." As discussed above in the urban sprawl findings, the Site 7 FLUM amendment encourages the efficient use of existing public facilities. The increase in density, which the amendment allows, may be viewed as a land use incentive that encourages the maximization of existing public facilities both as to Site 7 and as to surrounding properties that may later connect to City utilities. The amendment furthers Public Facilities Goal (a) and Policy (b)(1). The Site 7 FLUM amendment also does not undermine or conflict with Policy (b)(2). The City’s plans to rehabilitate a downtown community redevelopment area (CRA) will not be adversely affected by development allowed by the proposed amendment. Also, there is insufficient land within the CRA to accommodate the City’s projected housing and land use needs. The amendment is not inconsistent with this policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Site 7 FLUM amendment to be "in compliance." DONE AND ENTERED this 28th day of November, 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 November, 2005.
The Issue Whether the proposed amendment to the St. Johns County 2015 Future Land Use Map (FLUM), adopted by Ordinance No. 2002-31, is "in compliance" with the relevant provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part, II, Florida Statutes. A second issue raised by St. Johns County (County) and The Estuaries Limited Liability Company (Estuaries) is whether, if the proposed amendment is not "in compliance," it is nevertheless valid and authorized pursuant to Chapter 70, Florida Statutes, the Bert J. Harris, Jr., Private Property Rights Protection Act.
Findings Of Fact The Parties Petitioner, Julie Parker, resides in St. Augustine, Florida, less than one and one-half miles from the proposed project site. Parker also owns other property in St. Johns County. Parker submitted oral comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM Amendment and Ordinance No. 2002-31. The parties agreed that Parker has standing in this proceeding. The County is a political subdivision of the State of Florida. The County adopted its Comprehensive Plan in 1990. The County proceeded with the evaluation and appraisal report process in 1997 and 1998. This process ultimately resulted in the adoption of the 2015 Comprehensive Plan Amendment, Goals, Objectives, and Policies, and Adopted EAR-Based Comprehensive Plan Amendment in May 2000 (May 2000 EAR-Based Plan Amendment), which was subjected to a sufficiency review by the Department and found "in compliance." Estuaries owns the 9.99 acres (the Property) that is the subject of the FLUM Amendment. Estuaries also owns approximately 8.5 acres outside, adjacent to, and west of the Property. The 8.5 acres are subject to a Conservation Easement, which prohibits any development activity thereon. (The total contiguous land owned by Estuaries is approximately 18.5 acres.) The parties stipulated that the legal description of the Property attached to Ordinance No. 2002-31 contains less than 10 acres. Estuaries submitted comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM amendment. Estuaries has standing to participate as a party in this proceeding. The Property The Property is part of a larger tract owned by Estuaries, i.e., approximately 9.9 acres out of a total tract of approximately 18.5 acres. The entire 18.5 acre tract is located on Anastasia Island, a barrier island, which extends from the St. Augustine Inlet to the Matanzas Inlet. According to the 2000 Census, there are approximately 12,000 dwelling units on Anastasia Island. This includes condominium units and single-family units. The approximately 18.5-acre site is also located in the Coastal High Hazard Area under the County May 2000 EAR-Based Plan Amendment. The Property is part of Butler Beach (bordering the Atlantic Ocean), which is an historic area because it was settled in the early 1900's by black citizens and provided them with access to the beach, which was previously unavailable. However, no historic structures or uses have occurred on the Property. The entire 18.5 acre tract is located on the south side of Riverside Boulevard. The Property is located approximately 300 feet west of Highway A1A South (A1A runs north and south). The Intracoastal Waterway and the Matanzas River are west and adjacent to the 18.5 acres. The Estuaries site is also located adjacent to the Guana Tolomato Matanzas National Estuarine Research Reserve (NERR). The Property is vacant, partially wooded, and also consists of undeveloped wetlands. Of the 9.99 acres, approximately 6.7 acres are uplands and developable, and 3.29 acres are wetlands. As noted, the remaining approximately 8.5 acres of the Estuaries' property, and to the west of the Property, is subject to a Conservation Easement in favor of the County. The properties adjacent to the Property include the following: Single-family residential units are located along and on the north side Riverside Boulevard. The existing FLUM designations for this area are Residential Coastal Density A and C, with the existing zoning of open rural (OR). (Residential Coastal Density C permits 2.0 to 4.0 units per acre.) The Intracoastal portion of Butler State Park is to the south of the Property, with a FLUM designation of parks and open space and existing zoning of OR and is not in a conservation area. To the east of the Property is a utility substation site, Butler Avenue, various commercial uses, Island House Rentals or Condominiums (three-story oceanfront condominiums), and the Mary Street Runway. There is another condominium called Creston House, directly south of the Butler Park (ocean portion) area (distinguished from the Butler State Park), consisting of three stories. (Butler Park and Creston House are located east of A1A and southeast of the Estuaries property.) The existing FLUM designations are Coastal Residential Coastal Density A and C, and have existing zoning designations of Residential General (RG)-1 and Commercial General (CG). There are no Residential Density D FLUM land use designations in the contiguous area. In short, the Property is proximate to a state park, a densely developed area comprised of small residential lots of 25 by 100 feet lots, and the two three-story condominiums, which were built prior to the adoption of the County's 1990 Comprehensive Plan. The County's Comprehensive Plan and EAR-Based Amendments On September 14, 1990, the County adopted a Comprehensive Plan-1990-2005, with amendments (the 1990 Plan). Under the 1990 Plan, the Property was assigned a Residential Coastal-A land use designation under the existing FLUM, which meant that residential development was restricted to no more than one residential unit per upland (non-wetland jurisdictional) acre. Under this designation, approximately seven units could have been built on the Property. The zoning on the Property was and is RG-1. According to the County, at least as of a June 11, 1999, letter from the County's principal planner, Timothy W. Brown, A.I.C.P., to Kevin M. Davenport, P.E., the total units which would be allowed on the Property were 116 multi-family units, derived after making a detailed density calculation based in part on using 40 percent of the wetlands used for the density calculation. In May 2000, the County adopted the EAR-Based Plan Amendment, with supporting data and analysis, which the Department of Community Affairs found to be "in compliance." As required by Chapter 163, Part II, Florida Statutes, this would have included data and analysis for the Future Land Use Element (FLUE), which was adopted as part of these plan amendments. This is part of the data and analysis which supports the FLUM Amendment at issue in this proceeding. The May 2000 EAR-Based Plan Amendment continued the Residential Coastal A land use designation of the Property, which allows 0.4 to 1.0 units per acre. (Residential Coastal B allows 2.0 units per acre; Residential Coastal C allows 2.0 to 4.0 units per acre; and Residential Coastal D allows 4.0 to 8.0 units per acre.) The Residential Coastal A designation authorizes residential and non-residential uses, such as schools, public service facilities, police, fire, and neighborhood commercial. Restaurants and banks without drive-thru facilities, gasoline pumps, and professional office buildings are examples of neighborhood commercial uses. The May 2000 EAR-Based Plan Amendment does not limit the lot size, subject to limitations on, for example, impervious surface ratios, which do not change regardless of whether the land use designation is Residential Coastal A or D. Also, any development would also have to comply with the textural provisions of the May 2000 EAR- Based Plan Amendment, including the coastal and conservation elements. The Circuit Court Litigation There are many documents in this case which pertain to the litigation between Estuaries and the County. The civil action was filed in the Circuit Court of the Seventh Judicial Circuit, in and for St. Johns County, Florida, and styled The Estuaries Limited Liability Company v. St. Johns County, Florida, Case No. CA-00271. On February 11, 2000, Estuaries filed a Complaint against the County "relating to certain representations made by the County in connection with the development of certain real property located south of St. Augustine Beach in St. Johns County, Florida." A Second Amended Complaint was filed on or about May 30, 2001. Estuaries claimed that County staff made representations to Estuaries, which resulted in Estuaries having a vested right to develop its Property up to a maximum of 116 multi-family residential units. (The County took the position that Estuaries could build no more than 25 units on the Property.) Estuaries claimed that it had vested rights based upon a claim of equitable estoppel against the County. (One of Estuaries' claims was brought pursuant to the Bert Harris, Jr., Private Property Rights Protection Act, Chapter 70, Florida Statutes.)1 After discovery and the denial of motions for summary judgment, the parties entered into a "Settlement Agreement and Complete Release" (Settlement Agreement). The "General Terms of Settlement" in the Settlement Agreement provided in part: Estuaries shall prepare and file an application to amend the future land use map of the St. Johns County Comprehensive Plan to amend the designation of only that portion of the Property such that Estuaries may build 56 multi-family residential units on the Property and such that the amendment be a "Small-scale Amendment" as defined by the Local Government Comprehensive Planning Act. Estuaries agrees on behalf of itself, its successors and assigns to build not more than 56 units on the Property. County will waive or pay the application fee and will expedite its processing. The parties will forthwith prepare and submit to the Court a joint motion for the approval of this Agreement pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act, §70.001(4)(d)2. During the review and consideration of the amendment application, the County will expeditiously process the Estuaries' revised construction plans and, in connection therewith, the construction codes in effect as of November 13, 2001 (to the extent the County may do so without violating county, state or federal law), the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land Development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply. In all other respects, the revised construction plans shall comply with all other Comprehensive Plan and County ordinances and regulations. On or about November 16, 2001, counsel for the parties signed a Joint Motion, requesting the circuit court to approve the Settlement Agreement pursuant to Section 70.001(4)(d)2., Florida Statutes. On November 16, 2001, Circuit Judge John Michael Traynor, entered an "Order Approving Settlement Agreement pursuant to Bert J. Harris, Jr. Private Property Rights Protection Act." Judge Traynor stated in part: The central issue in this litigation has been the number of dwelling units that would be permitted on the Property. The issues in the case are legally complex and, although the credibility of the testimony and authenticity of the exhibits expected to be introduced was not expected to be substantially in dispute or challenged, the meaning of the testimony and the meaning and inferences to be drawn from such evidence was very much in dispute. The issues included the extent of vested rights, the extent to which estoppel may be applied to the County, contractual liability, and potential liability under the Bert J. Harris, Jr. Private Property Rights Protection Act . . . and the relief requested included the request for a declaration that the Plaintiff is entitled to build up to 116 dwelling units on the Property and damages against the County. Judge Traynor also "Ordered and Adjudged," in part: Pursuant to Florida Statute § 70.001(4)(a) & (c) and applicable law, this Court finds that proper notice of a Bert Harris Act claim was timely provided to the County, and other governmental entities, and the County did make a written settlement offer to the Plaintiff, in accordance with the Bert Harris Act, that was accepted by Plaintiff. Florida Statute § 70.001(4)(c) permits, inter alia, for an adjustment of land development provisions controlling the development of a plaintiff's property; increases or modifications in the density, intensity, or use of areas of development; the transfer of development rights; conditioning the amount of development or use permitted; issuance of a development order, a variance, special exceptions, or other extraordinary relief; and such other actions specified in the statute. While the parties may dispute whether an amendment is necessary to the County's Comprehensive Plan, the parties have agreed that the Plaintiff shall submit a small-scale amendment to the County for consideration and approval pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act. . .; without waiver of either party's rights to contest and defend the necessity of submitting such an amendment, in light of this Court's approval of the settlement agreement pursuant to the Bert Harris Act and applicable law. The Court finds that the Settlement Agreement and Complete Release is fair, reasonable and adequate; is in the best interests of the parties and protects the public interest served by the Local Government Comprehensive Planning and Land Development Regulation Act. . .; and is the appropriate relief necessary to prevent the County's regulatory efforts from inordinately burdening the Property with regard to density, impact on public services, the environment and the public health, safety and welfare of the community and the rights of individuals to reasonably utilize their property and to rely on the representations of government, taking into consideration the risks that both parties had in this litigation. This litigation has been ongoing for more than 18 months, and substantial discovery and record has been presented to the Court that provides ample basis for this Court's approval of this settlement as being fair, reasonable and adequate and appropriate under the Bert Harris Act. There is no evidence before the Court that would suggest that the proposed settlement is the result of any collusion among the parties or their counsel. In fact, the record is to the contrary, whereby counsel on both sides have aggressively and zealously pursued the interests of their respective clients. . . . Judge Traynor directed the parties to implement the terms of the Settlement Agreement, "subject to the right of the public to comment at an appropriate public hearing pertaining to the above referenced small scale amendment to the County's Comprehensive Plan, and shall cooperate to accomplish in good faith the responsibilities under the Settlement Agreement and Complete Release." There is no evidence that Judge Traynor's Order has been rescinded or otherwise modified. There is no statutory authority to collaterally attack Judge Traynor's Order in this proceeding nor is there any authority which provides that this Order can be ignored. Also, this is not the appropriate proceeding to determine whether Estuaries has, in fact, vested rights. Accordingly, Judge Traynor's Order, approving the Settlement Agreement, is accepted as binding authority. The Small Scale Development Application In compliance with Judge Traynor's Order and the Settlement Agreement, on March 26, 2002, Estuaries filed a "Small Scale Amendment Comprehensive Plan Amendment Application Form" with the County. Estuaries requested a change in the Property's FLUM designation from Residential Coastal A, Zoning RG-1 to Residential Coastal D, Zoning RG-1. Estuaries represented, in part, that the Property consisted of 9.99 acres of vacant land, including 3.2 acres of wetlands and approximately 6.7 acres of developable land (uplands) "which will be developed into a 56 unit Multi-Family Condominium." County staff reviewed the application and recommended approval. As part of the agenda item for consideration by the St. Johns County Board of County Commissioners, County staff, in light of the criterion of "Consistency with the Goals, Objectives and Policies of the Comprehensive Plan, State Comprehensive Plan and the Northeast Florida Regional Policy Plan," stated: "[t]he approved Settlement Agreement was filed pursuant to Chapter 70.001." With respect to "Impacts on Public Facilities and Services," County staff stated: "The project has received a Certificate of Concurrency addressing the impacts on transportation, water, sewer, recreation, drainage, solid waste and mass transit. The Certificate of Concurrency is based on impacts of 84 multi-family dwelling units. Pursuant to the Settlement Agreement, the project contains 56 multi-family dwelling units. St. Johns County provides central water and sewer." With respect to "Compatibility with Surrounding Area," County staff stated: "The area is developed with a mixture of residential, commercial, park (Butler Park), and vacant land of various zoning." According to Mr. Scott Clem, the County's Director of Growth Management Services, County staff felt that there were adequate public facilities for a 56-unit project, because Estuaries had previously demonstrated that facilities were available for an 84-unit project. However, County staff expressly noted in the Planning Department Staff Report submitted to the Planning and Zoning Agency that "[t]here are no development plans included in the Application. However, all site engineering, drainage and required infrastructure improvements will be reviewed pursuant to the Development Review Process to ensure that the development complies with all applicable federal, state and local regulations and permitting requirements. No permits shall authorize development prior to compliance with all applicable regulations." At this point in time, County staff were "analyzing the potential for 56 units to be on the property. It was a site specific analysis at that point." On April 18, 2002, the Planning and Zoning Agency unanimously recommended approval of the FLUM amendment. After a properly noticed public hearing, on May 28, 2002, the County approved the FLUM Amendment in Ordinance 2002- 31. In Ordinance 2002-31, the County approved the FLUM Amendment at issue, which changed the FLUM land use classification of the Property from Residential Coastal A to Residential Coastal D. Ordinance 2002-31 also provided: "The Land Uses allowed by this Small Scale Comprehensive Plan Amendment shall be limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height." The Challenge Parker filed an Amended Petition challenging the lack of data and analysis to support the FLUM Amendment; challenging the increase in density of the Property located in a Coastal High Hazard Area; challenging the internal consistency of the FLUM Amendment with the May 2000 EAR-Based Plan Amendment; challenging the decision by the County to process the application as a small scale development amendment; and challenging the failure to provide Parker with adequate notice of a clear point of entry to challenge Ordinance No. 2002-31. Notice The County provided notice, by newspaper, of the Board of County Commissioners' meeting of May 28, 2002. Before this meeting, a sign was placed on the Property, providing notice of the meeting. Parker personally attended the May 28, 2002, meeting and addressed the Commission regarding the FLUM Amendment. Ordinance No. 2002-31 provided: "This ordinance shall take effect 31 days after adoption. If challenged within 30 days after adoption, this ordinance shall not become effective until the state land planning agency or the Administration Commission issues a final order determining the adopted small scale amendment is in compliance." This Ordinance does not advise a person of the right to challenge the Ordinance pursuant to Chapter 120, Florida Statutes, the Uniform Rules of Procedure, or Section 163.3187(3)(a), Florida Statutes. This type of notice is not required for the reasons set forth in the Conclusions of Law. Does the FLUM Amendment, covering 9.99 acres, involve a "use" of 10 acres or fewer, pursuant to Section 163.3187(1)(c)1., Florida Statutes? "A small scale development amendment may be adopted only [if] [t]he proposed amendment involves a use of 10 acres or fewer." Section 163.3187(1)(c)1., Florida Statutes.2 In the Amended Petition and in her Prehearing Stipulation, Parker contends that the "use," which is the subject of the FLUM Amendment, relates to more than the 9.99 acre parcel and, therefore, the FLUM Amendment is not a small scale development amendment defined in Section 163.3187(1)(c)1., Florida Statutes. Parker contended that because the FLUM Amendment authorizes a maximum of 56 residential units to be developed on the Property, and the maximum density under the Residential Coastal D and RG-1 zoning designations is 42.12 units, using the on-site wetlands density bonus, that Estuaries "must be using the off-site wetlands that are contained within the 18.5 acre parcel to obtain the density credit necessary to reach 56 units for the site under" the FLUM Amendment. The 56 residential unit maximum was the product of the circuit court litigation and Settlement Agreement, as approved by Judge Traynor, which resolved the differences between the County and Estuaries regarding the maximum residential density which could be authorized on the Property. Parker also contended that because Estuaries may use a proposed lift station owned by the County off-site, that this causes the proposed "use" of the Property to exceed 10 acres. It appears that at some prior time in the "vesting rights" chronology of events, Magnolia S Corporation, in order to downscale the project, agreed to sell a 40' by 80' parcel to the County, located adjacent to the Property and in the northeast portion, to expand the existing County lift station on Riverside Boulevard. There is a lift station adjacent to the Property that serves as "a repump station that serves the development along Riverside [Boulevard] west of the lift station and serves all the development in St. Johns County on the island south of Riverside Boulevard." It is proposed that sewage effluent from development on the Property would be deposited on site and then pumped into an adjacent force main which eventually ends up in the station. According to Mr. Kevin Davenport, Estuaries' civil engineer, "56 units added to that pump station would be extremely miniscule in the overall amount of sewage that goes through it." Thus, Estuaries anticipates having their own on-site lift station, which "would be pumped through a pipe to the Riverside right-of- way, where it would connect to an existing county-owned pipe which currently goes to the lift station." Mr. Clem stated that "[u]tilities are very commonly done off site where water or sewer distribution or transmission lines are constructed to the site." This would include the use of off- site lift stations. However, the proposed use of the lift station does not necessarily compel the conclusion that the FLUM Amendment exceeds 9.99 acres. If this were so, any proposed use of any off-site utilities would cause a pro rata calculation and increase of the size of the site providing the service, then be added to the 9.99 acres. This is not a reasonable construction of Section 163.3187(1)(c)1., Florida Statutes. Parker also claimed that when the Estuaries granted the County a Conservation Easement for the approximately 8.5 acres (out of 18.5 acres) of wetlands adjacent to the Property, Estuaries "used" this property to secure the FLUM Amendment, and therefore, exceeded the 9.99 acres. The Conservation Easement precludes development activity on the approximately 8.51 acres. ("The purpose of this Conservation Easement is to assure that the Property will be retained forever in its existing natural condition and to prevent any use of the Property that will impair or interfere with the environmental value of the property." Prohibited uses include "[a]ctivities detrimental to drainage, flood control, water conservation, erosion control, soil conservation, or fish and wildlife habitat preservation.") The "use" of the 8.51 acres as a potential visual amenity for potential residents on the Property is not a "use" within a reasonable reading of Section 163.3187(1)(c)1., Florida Statutes. Parker also suggested that Estuaries will need to improve Riverside Boulevard (paving and drainage) and the public right-of-way consisting of approximately 1.51 acres, which is not owned by Estuaries. It appears that Riverside Boulevard is already open, improved, and paved. Also, Mr. Clem stated that it is common to have off-site improvements associated with a project, which might include intersection or roadway improvements that are not on or within the project site. Mr. Clem opined that while these improvements would be required for the project, they would have been off-site. Some improvements, such as improvements to Riverside Boulevard, would most likely benefit the general public, and not be limited to the future residents on the Property. It is common for local governments to require improvements to public infrastructure as a condition of development. These off-site improvements do not necessarily make the "development activity" larger than the size of the landowner's site, here the Property. Data and Analysis Parker contended that the FLUM Amendment is not supported by appropriate data and analysis. As noted herein, Estuaries sought approval of a FLUM Amendment for its Property, i.e., a land use change to the FLUM. No text (goals, objectives, and policies) changes to the May 2000 EAR-Based Amendment were requested nor made. This is normal for a "site-specific small scale development activity." Section 163.3187(1)(c)1.d., Florida Statutes. Consideration of the FLUM Amendment in this proceeding is unusual for several reasons. First, the necessity for the FLUM change arose as a result of the Settlement Agreement, approved by Judge Traynor, which resolved the differences existing between the County and Estuaries regarding the number of units which could, as a maximum number, be developed on the Property. Second, the data and analysis, which normally is presented to the local government, here the County, at the time the plan amendment is adopted, is not in its traditional format here, largely, it appears, because of the manner in which consideration of the FLUM Amendment arose. Nevertheless, this situation is not fatal for, under existing precedent, see, e.g., Conclusion of Law 96, data, which was in existence at the time the FLUM Amendment was adopted by the County, may be considered in determining whether there is, in fact, adequate data supporting the FLUM Amendment. The data relied on by the County and Estuaries to support the FLUM Amendment was compiled and initially presented to the County on or about July 6, 1999, when Estuaries sought authorization from the County for a proposed project to construct 84 multi-family residential units on the same general area as the Property. This started the County's development review process. Estuaries began the process at this time, believing that it had "vested rights" to develop the Property. Mr. Clem explained that the development review process is "extremely detailed. It involves 11 or 12 different programs within the [C]ounty, looking at everything from the actual site plan itself, water and sewer provision, for all the things that would go into site construction, roadway design, the environmental considerations. We basically look at how this site will be developed in accordance with the land development code and any other regulations. We ensure that the water management district permits are obtained, if applicable, or other state agencies." This record contains County Department comments which pertain to a host of issues, including but not limited to, drainage, traffic, fire services, urban forestry (trees and landscape on-site), utilities, zoning (e.g., buffers, setbacks), concurrency requirements, etc. County staff raised questions (identified as submittals) on at least four separate occasions followed by written responses by the applicant on at least three occasions. However, not all issues were resolved. A July 1999, Land Development Traffic Assessment, prepared by Beachside Consulting Engineers, Inc., was submitted to the County as part of the request for a concurrency determination. The analysis "indicates that the roadway segments within the impact area will continue to operate at an acceptable LOS through the construction of this project." The "Summary" of the assessment states: "This project meets traffic concurrency standards, as defined by the St. Johns County Concurrency Management Ordinance, for all roads within the traffic area." "Stormwater Calculations" for the 84-unit, multi-family housing development were also provided in a report dated July 7, 1999. The applicant also furnished the County with a "geotechnical report," which analyzed the soil conditions related to storm water ponds and to the placement of the buildings and the support of the buildings on the site. Soil borings and other testing revealed the capabilities of the soil for, for example, percolation rates for the storm water ponds. There is no evidence that there are any specific historic buildings or geological or archeological features on the Property. In July 1999, the applicant submitted an application for concurrency. At that time, County staff analyzed this information to ensure that public facilities and services were in place to serve the project. This application was reviewed in relation to the County's concurrency management provisions of the County's Land Development Code. On September 3, 1999, the County's Planning Department prepared a report regarding this application and recommended "approval of a Final Certificate of Concurrency with Conditions for the development of 84 residential condominium units." (Staff made findings of fact, which included a discussion of traffic, potable water/sanitary sewer, drainage, solid waste, and mass transit.) On September 8, 1999, the Concurrency Review Committee met and adopted the Staff's Findings of Fact with conditions, including but not limited to, the applicant providing a copy of the Department of Environmental Protection permits "necessary for connection to central water and wastewater service prior to Construction Plan approval," and "[t]he applicant receiving approval of construction/drainage plans from the Development Services Department prior to commencement of construction." The Final Certificate of Concurrency with Conditions was issued on October 1, 1999, and was due to expire on September 8, 2001. However, the Settlement Agreement provided, in part, that "the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply." (Emphasis added.) (Ms. Teresa Bishop's (County Planning Director) November 7, 2001, letter indicated, in part, that Estuaries' request for "tolling [of the Final Certificate of Concurrency] cannot be reviewed until the outcome of the pending litigation is known. . . . After the litigation is concluded, your request for tolling may be resubmitted for review." The Settlement Agreement post-dates this letter.) In evaluating a small scale plan amendment, County staff evaluates the availability of public services which, according to Mr. Clem, is "one of the major components," and County staff "is looking at virtually the same issues that [the County] would look at in concurrency to evaluate and make recommendations on small scale amendments." Mr. Clem also advised that the County's analysis of the 84-unit project did not involve, and was not based on, "a specific site plan with buildings at a certain location or parking in a certain location. It was more an 84- unit project with certain data and analysis associated with that site or project." By letter dated October 4, 1999, the Department of Environmental Protection indicated that it had received a "Notification for Use of the General Permit for Construction of an Extension to a Drinking Water Distribution System" submitted for the Estuaries project. The Department stated further: "After reviewing the notice, it appears that your project will have minimal adverse environmental effect and apparently can be constructed pursuant to a general permit as described in Chapter 62-555, F.A.C." The permit expires on October 4, 2004. This permit allows the applicant to demonstrate that it will offer a central water service, available to be served through the County's utility department. This would ensure that there is sufficient potable water available. By letter dated October 6, 1999, the Department of Environmental Protection also issued a permit for the construction of a sewage collection/transmission system (domestic waste). By letter dated November 11, 1999, the St. Johns Water Management District issued a "formal permit for construction and operation of stormwater management system." This permit authorized "[a] new stormwater system with stormwater treatment by wet detention to serve Estuaries Multi-family Development, a 5.88 acre project to be constructed as per plans received by the District on 7/12/1999." This permit did not relieve the applicant "from the responsibility for obtaining permits from any federal, state, and/or local agencies asserting concurrent jurisdiction over this work." Mr. Clem believed that this permit was evidence that "the state agencies ha[d] considered the environmental issues relating to storm water and all the issues that they deal with in issuing a permit." The Property is located in a "development area boundary" as indicated on the FLUM, which means that these areas allow "development potential." Other areas, such as rural silviculture and agricultural lands, are outside the development area and only limited and low density development is allowed. Conservation areas are also designated on the FLUM. Given the location of the Property within the development area boundary, the County thereby eliminated the necessity of producing some of the data normally required.3 Mr. Clem explained: So by being within a development area boundary it's in essence already had rights to develop, depending on the classification what those rights are, whether it's residential, commercial, industrial. So by virtue of the fact that this site [the Property] was already in the developmental boundary, we didn't deal with issues such as need, which is a big issue in the county when we add developmental boundary. Is there need for additional residential units, and so forth. So that is one part of the answer. The other part is when we're looking at changing from one residential classification to another, we're not dealing with the same issues we might have if it was going from residential to commercial or residential to industrial. So in the context of a plan amendment like this, we're looking at what can this land support in terms of density and are there public facilities available? Is it generally compatible with the surrounding area? What are the potential impacts to natural resources? So those things are still analyzed, but they're done in a probably more confined context. And then the other factor is this being a small scale amendment further reduces the amount of data that is typically done. And if it was a major amendment, there's a whole new range of issues when we deal with major amendments. By definition, they can cause more of an impact. For Mr. Clem, the data and analysis which was generated during the concurrency process for the proposed 84-unit project was significant and would be applicable to a proposed 56-unit project. Mr. Clem opined that the data for this small scale amendment was "[f]ar in excess of anything [he had] seen in the county." Environmental Impacts of the FLUM Amendment The area on and around the Estuaries' property is an area of tidal marsh intermixed with upland scrub. Many wildlife species have been seen utilizing the wetlands on and adjacent to the Estuaries' site (the 18.5 acre parcel). These include woodstorks, snowy egrets, roseate spoonbills, little blue herons, tri-colored herons, white ibis, and ospreys. Owls, foxes, raccoons, opossums, fiddler crabs, clams, fish, shrimp, and turtles also frequent the area. Parker's environmental scientist and ecologist, Mr. Robert Burks, testified to the environmental effects of any development of the Property subject to the FLUM Amendment. Mr. Burks has worked with American Institute of Certified Planners (A.I.C.P.) designated planners, providing them with opinions with respect to environmental issues. But he is not an expert in land use planning. The National Estuarine Research Reserve (NERR) is a program of the National Oceanic and Atmospheric Administration, a federal program administered by the Department of Environmental Protection. It is a program to do research and education on estuarine systems. The estuarine ecosystem composed of the Guana, Tolomato, and Matanzas Rivers has been designated as a NERR. There is testimony that development and increases in population in the area, in general, have been responsible for, for example, the decline and closure of shell-fishing and decline of water quality in the area. Conservation Goal E.2 provides: The County shall conserve, utilize, and protect the natural resources of the area, including air, water, wetlands, water wells, estuaries, water bodies, soils, minerals, vegetative communities, wildlife, wildlife habitat, groundwater recharge areas and other natural and environmental resources, insuring that resources are available for existing and future generations. Objective E.2.2 provides: Native Forests, Floodplains, Wetlands, Upland Communities, and Surface Water The County shall protect native forests, floodplains, wetlands, upland communities, and surface waters within the County from development impacts to provide for maintenance of environmental quality and wildlife habitats. Policy E.2.2.5.(a)(1)(b) provides: The County shall protect Environmentally Sensitive lands (ESLs) through the establishment of Land Development Regulations (LDRs) which address the alternate types of protection for each type of Environmentally Sensitive Land. Adoption and implementation of the Land Development Regulations shall, at a minimum, address the following issues: For Wetlands, Outstanding Florida Waters (OFW), and Estuaries: establish and modify buffers between the wetlands/ OFW/ estuaries and upland development as stated in the County's Land Development Regulations (LDRs), and as follows: * * * Except a minimum of a 50 ft. natural vegetative upland buffer shall be required and maintained between the development areas and the St. Johns, Matanzas, Guana and Tolomato Rivers and their associated tributaries, streams and other interconnecting water bodies. Policy E.2.2.13(b)(6) provides: By December 1999, the County shall develop and adopt guidelines and standards for the preservation and conservation of uplands through various land development techniques as follows: (b) The County shall recognize the following vegetative natural communities as Significant Natural Communities Habitat. Due to the rarity of these vegetative communities, a minimum of 10 percent of the total acreage of the Significant Natural Communities Habitat (excluding bona fide agriculture and/or silviculture operations) shall be preserved and maintained by the development. * * * (6) Scrub. Where on-site preservation of the native upland communities are not feasible, the County as an alternative shall accept a fee in lieu of preservation or off-site mitigation in accordance with the County Land Development Regulations. Mr. Burks opined that "generally," and if Goal E.2 is read "literally", the FLUM Amendment did not meet this Goal and afford protection for wetlands, vegetative communities, estuaries, wildlife and wildlife habitat. He perceives that "[a]nytime there's a development there will be impacts to the estuarine--the water bodies because of surficial runoff from the parking lots, from the impervious surfaces, and it will carry pollutants into those areas. And that includes soils also. . . . As far as upland habitat, when you develop an area like this, unless you leave certain parts, the upland habitat will be negatively impacted obviously. There won't be the trees there, the vegetation that was normally there before the development." For Mr. Burks, any development of the Property would generally be inconsistent with the Plan provisions recited above. But, his opinion is specifically based on how each system or plan for the site, or here, the Property, is actually designed--"it would depend on the design of the housing structures themselves and where they were placed. If you design anything in a manner which is going to protect that buffer and literally protect the water quality and the runoff in that area, then you may--it may not violate it." For example, if the Property were developed with 25-foot buffers instead of 50-foot buffers, Mr. Burks says that, from an ecology standpoint, there would be insufficient protection for wildlife, including threatened and endangered species. He offered the same opinion if the FLUM Amendment did not require a minimum ten percent set aside of the total acreage for significant natural communities habitat on the Property, such as, scrub of approximately 6.7 acres, a protected vegetative community existing on the upland portion of the Property. Furthermore, Parker introduced into evidence proposed site plans for the Property dated May 24, 2002, which show, in part, a 25-foot buffer, not a 50-foot buffer.4 Parker contends that these site plans are the best available data and analysis regarding whether the FLUM Amendment is "in compliance." However, the purpose of this proceeding is to determine whether the FLUM Amendment is "in compliance," not whether specific draft, and not approved, site plans are "in compliance" with the May 2000 EAR-Based Plan Amendment or the LDRs. If site plans are approved and a development order issued by the County, Parker, and any other aggrieved or adversely affected party may file a challenge pursuant to Section 163.3215, Florida Statutes. But, this is not the appropriate proceeding to challenge proposed site plans. This is not to say that proposed site plans cannot be considered data and analysis; only that they are not incorporated in the FLUM Amendment and are not subject to challenge here. See The Sierra Club, et al. v. St. John County, et al., Case Nos. 01- 1851GM and 01-1852GM (Recommended Order May 20, 2002; Final Order July 30, 2002). Internal Consistency Parker contended that the FLUM Amendment is inconsistent with several provisions of the May 2000 EAR-Based Plan Amendment. Some of these issues have been discussed above in Findings of Fact 68 to 80, pertaining to environmental considerations. Another issue is whether the FLUM Amendment, which changes the maximum density on the Property, is inconsistent with Policy E.1.3.11 which provides: "The County shall not approve Comprehensive Plan Amendments that increase the residential density on the Future Land Use Map within the Coastal High Hazard Area." See also Policy A.1.5.6 which offers almost identical language. The FLUM Amendment changes the land use designation of the Property, and allows a land use "limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height," and thus allows a potential increase in the density of the Property, located in the Coastal High Hazard Area. This resulted from the Settlement Agreement. In Policy A.1.11.6, [t]he County recognizes that the Plan's Objectives and Policies sometime serve to support competing interests. Accordingly, in such instances, and in the absence of a mandatory prohibition of the activity at issue, it is the County's intent that the Plan be construed as a whole and that potentially competing Objectives and Policies be construed together so as to render a balanced interpretation of the Plan. It is the further intent that the County interpretation of the Plan, whether by County staff, the Planning & Zoning Agency, or the Board of County Commissioners, shall be afforded appropriate deference. County interpretations of the Plan which balance potentially competing Objectives and Policies shall not be overturned in the absence of clear and convincing evidence that the County interpretation has misapplied the Plan construed as a whole. The May 2000 EAR-Based Plan Amendment Goals, Objectives, and Policies must be read in their entirety and individual provisions cannot be read in isolation. Objective E.1.3 requires the County to engage in "post disaster planning, coastal area redevelopment, and hurricane preparedness. The County shall prepare post-disaster redevelopment plans which reduce or eliminate the exposure of human life and public and private property to natural hazards." Mr. Clem opined that Policy E.1.3.11, see Finding of Fact 81, expressed "the general intent of limiting population increases that would result in adverse impacts to hurricane evacuation of the coastal areas," and, in particular, the "barrier islands." (Policy E.1.9.5, under Objective E.1.9 Hurricane Evacuation Time, provides: "St. Johns County shall attempt to limit the density within the Coastal High Hazard Area as allowed by law.") Mr. Clem further stated that the FLUM Amendment, which restricted the Property to a maximum of 56 residential units, from a possible 116 unit maximum, was consistent with the Policy which restricts density within the coastal hazard zone. In rendering his opinions, Mr. Clem balanced the above- referenced Policies with Objective A.1.16, pertaining to "private property rights." When these May 2002 EAR-Based Plan Amendment provisions are read together, it appears that Mr. Clem's interpretations are not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Community Affairs concluding that the FLUM Amendment adopted by St. Johns County in Ordinance No. 2002-31 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 17th day of December, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2002.
The Issue The issue in this case is whether comprehensive plan future land use map amendment (FLUMA) 07-L25, adopted by Marion County Ordinance 07-31 on November 20, 2007, which changed the FLUM designation on 378 acres of Urban Reserve and on 17.83 acres of Rural Land to Medium Density Residential, is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The parcel that is the subject of the FLUMA at issue (the Property) is approximately 395.83 acres in size. The existing FLUM designation for 378 acres of the Property is Urban Reserve, and the remaining 17.3 acres are designated as Rural Land. Both designations allow a maximum of 1 dwelling unit per 10 acres. The FLUMA would change the designation of the entire parcel to Medium Density Residential (MDR). MDR generally allows up to four dwelling units per acre. However, Future Land Use Element (FLUE) Policy 12.5.k, which also was adopted as part of County Ordinance 07-31, limits the maximum density on the Property to two dwelling units per acre. FLUE Policy 12.5.k also requires: that development on the Property "be served by central potable water and central sanitary sewer services available concurrent with development" and be a Planned Unit Development "to address site design, buffering, and access issues"; and that NW 90th Avenue be reconstructed from U.S. Highway 27 north to the north-eastern corner of the Property and that all traffic facility improvements needed at the NW 90th Avenue/U.S. 27 intersection, including signalization if approved by the Florida Department of Transportation, be constructed prior to the issuance of any certificates of occupancy for the Property. Finally, with respect to the 17.3 acres formerly designated as Rural Land, FLUE Policy 12.5.k defers compliance with the County's Transfer of Development Rights (TDR) Program until application for assignment of a zoning classification for the land. Petitioners' Challenge Intervenors own the Property. Petitioners own property nearby in Marion County. Intervenors and Petitioners commented on the proposed FLUMA between transmittal to DCA and adoption by the County. Petitioners contend: The FLUMA is not consistent with the stormwater drainage, retention, and management policies contained in Policies 1.1.a. and 1.1.d. of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Comprehensive Plan. MDR is not suitable or compatible with existing and planned development in the immediate vicinity, as required by FLUE Policy 12.3 of the Comprehensive Plan. The Board of County Commissioners failed to evaluate the FLUMA's impact on “the need for the change” as provided in FLUE Policy 12.3 of the Comprehensive Plan. The FLUMA fails to take into account its impact on “water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding,” as required by Section 187.201(15)(b)6., Florida Statutes. The FLUMA is not consistent with Transportation Policy 1.0 of the Comprehensive Plan, which states: "Marion County shall create and maintain transportation facilities that operate in a safe and efficient manner within an established level of service." The FLUMA is not consistent with the State's Comprehensive Plan in that it does not "ensure that new development is compatible with existing local and regional water supplies," as required by Section 187.201(7)(b)5., Florida Statutes. The FLUMA does not direct development away from areas without sediment cover that is adequate to protect the Floridan Aquifer and does not prohibit non-residential uses within 200 feet of a sinkhole, solution channel, or other karst feature, in violation of FLUE Policy 4.2 of the Comprehensive Plan. The FLUMA does not comply with Section 187.201(7), Florida Statutes, concerning the protection of surface and ground water quality in the State. Recharge Sub-Element Policy 1.1.a. and d. Policy 1.1 of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Marion County Comprehensive Plan provides in part: The County’s land development regulations shall implement the following guidelines for stormwater management consistent with accepted engineering practices by October 1, 2007: Stormwater retention/detention basin depth will be consistent with the water management district's storm water requirements for Karst Sensitive Areas so that sufficient filtration of bacteria and other pollutants will occur. Avoidance of basin collapse due to excessive hydrostatic pressure in Karst Sensitive Areas shall be given special consideration. * * * d. Require the use of swales and drainage easements, particularly for single family residential development in Karst Sensitive Areas. These are requirements for land development regulations (LDRs); they do not apply to comprehensive plan amendments. In any event, the evidence did not prove that the site is unsuitable for the density allowed under the adopted FLUMA due to karst features. The admissible evidence presented by Petitioners regarding stormwater management in karst topography generally related to flooding problems on the property contiguous to the Property, and to a karst feature referred to as the “63rd Street Sinkhole,” which is located in the general vicinity of the Property. Fay Baird, an expert hydrologist called by Petitioners, testified that the 63rd Street Sinkhole allows stormwater run- off to enter the upper aquifer. Ms. Baird testified generally of the problems and concerns regarding development and stormwater management systems in karst topography. She testified that the Property should be properly inventoried, that specific karst features should be identified, and that any stormwater system designed or developed should take into account karst features to protect against groundwater contamination and flooding. She testified that she had not been on the Property, had not seen or reviewed core borings or other data to determine the depth and nature of the sub-surface, and was not in a position to provide opinions as to whether or not a particular stormwater management system would or could adequately protect against her concerns. Intervenors’ expert, Richard Busche, testified that a stormwater management plan like the one recommended by Ms. Baird was being developed. Compatibility under FLUE Policy 12.3 FLUE Policy 12.3 provides in pertinent part: Before approval of a future land use amendment, the applicant shall demonstrate that the proposed future land use is suitable, and the County will review, and make a determination that the proposed land use is compatible with existing and planned development in the immediate vicinity . . . . Petitioners argued that the proposed MDR development of the Property is incompatible with surrounding agricultural uses. Actually, the Property is surrounded by a mixture of agricultural and residential uses, including residential subdivisions, a golf course, and scattered large-lot residential and equestrian uses. The properties immediately to the south and east of the Property are developed residential properties and are designated MDR. Before the FLUMA, most of the Property was designated Urban Reserve under the County's Comprehensive Plan. Such land "provides for expansion of an Urban Area in a timely manner." FLUE Policies 1.24.B and 2.18. "For an Urban Reserve Area to be designated an Urban Area, it must be compact and contiguous to an existing Urban Area, and central water and sewer must be provided concurrent with development within the expanded area." FLUE Policy 2.18. The Property is compact and is contiguous to existing Urban Area designated MDR. This indicates that the County already has planned for timely conversion of the Urban Reserve land on the Property to urban uses, including MDR. It also means that the County already has determined that at least certain urban uses, including MDR, are compatible with adjacent agricultural uses. The Property is in the receiving area under the County's Farmland Preservation Policy and TDR Program in FLUE Objectives 13.0 and 13.01 and the policies under those objectives. This means that the County already has determined that residential density can be transferred to the Property from the Farmland Preservation sending areas to increase residential density up to one dwelling unit per acre. See FLUE Policy 13.6. This would constitute Low Density Residential, which is an urban use under the County's Comprehensive Plan. See FLUE Policy 1.24.A. By establishing the Farmland Preservation Policy and TDR Programs, the County already has determined that Low Density Residential is compatible with adjacent Rural Land. In addition, Low Density Residential clearly is compatible with MDR. Although not raised in the Petition, Petitioners argued that the Urban Reserve and Farmland Preservation eastern boundary was improperly moved west to NW 90th Avenue. However, that change was made prior to the adoption of Ordinance 07-31 and the FLUMA at issue in this case and is not a proper subject of this proceeding. Demonstration of Need under FLUE Policies 13.2 and 12.3 FLUE Policy 13.2 provides: The Transfer of Development Rights program shall be the required method for increasing density within receiving areas, unless, through the normal Comprehensive Plan Amendment cycle, an applicant can both justify and demonstrate a need for a Future Land Use Map (FLUM) amendment. FLUE Policy 12.3 provides: Before approval of a future land use amendment, . . . the County . . . shall evaluate its impact on: The need for the change; The availability of facilities and services; The future land use balance; and The prevention of urban sprawl as defined by Rule 9J-5.006(5)(g), Florida Administrative Code. The evidence proved that the County interprets FLUE Policy 12.3 to require need and future land use balance to be assessed within the planning districts it has established. There is no need for additional MDR in the County's Planning District 5, where the Property is located. To accommodate the projected population increase in Planning District 5 by 2010, which is the planning horizon for the County’s Comprehensive Plan, an additional 644 dwelling units are needed. There are 1,893 vacant acres of MDR available in Planning District 5. At four units per acre allowed in MDR, the County has an available supply of 7,572 MDR dwelling units in Planning District 5. In the absence of a need in Planning District 5, the County relied on a need demonstration prepared for the Intervenors by Fishkind and Associates.6 Besides being a County-wide analysis instead of a planning district analysis, the Fishkind analysis assumed a planning horizon of 2015, rather than the 2010 horizon established in the Comprehensive Plan. Finally, the Fishkind analysis applied an allocation factor to the total projected need for residential use, most of which already is supplied, resulting in a projection of residential far in excess of the incremental need for additional residential land by 2015, much less by 2010. The result of the Fishkind approach was to allocate enough land for residential use to meet the County-wide projected incremental need for additional residential land use for approximately 45 years, which is five times the calculated incremental need for 2015. Even assuming that a County-wide demonstration of need complied with Marion County's Comprehensive Plan, this is much too high an allocation ratio to use to meet the incremental need projected for a 2015 plan, much less for a 2010 plan. The expert for Intervenors, Stanley Geberer, defended the Fishkind analysis in part by stating that it was comparable to demonstrations of need accepted by DCA in other cases. However, there was no evidence that the facts of those other cases were comparable to the facts of this case. Mr. Geberer also asserted that holding the County to its 2010 planning horizon would make it impossible for the County to plan for the future. However, nothing prevents the County from revising its Comprehensive Plan to plan comprehensively for a longer timeframe. There was no evidence of any other circumstances that would demonstrate a need for the FLUMA at issue in this case. State Comprehensive Plan Policy 187.201(15)(b)6. Petitioners did not prove that the FLUMA fails to take into account its impact on "water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding." To the contrary, the evidence was that those items were taken into account as part of the FLUMA. (However, as to the FLUMA's impact on the availability of land to meet demands, see "Demonstration of Need under FLUE Policies 13.2 and 12.3," supra.) Transportation Element Objective 1.0 Transportation Element Objective 1.0 provides: Marion County shall create and maintain transportation facilities that operate in an efficient and safe manner within established levels of service. Petitioners presented no expert testimony or admissible evidence that the FLUMA will change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. Intervenors presented the testimony of Jonathan Thigpen, an expert traffic engineer, who prepared and submitted to the County a Traffic Impact Study and testified that the FLUMA would not change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. The ultimate need for transportation improvement, such as turn lanes and traffic lights to mitigate the impacts of development under the FLUMA, will be determined at later stages of development. Petitioners suggested that the FLUMA will result in delays caused by additional traffic, frustrate drivers waiting to turn east on U.S. 27, and induce large numbers of them to seek an alternative route to the north through agricultural areas, some of which have inadequate slag roads. However, Petitioners failed to prove that this result is likely. State Comprehensive Plan Policy 187.201(7)(b)5 Petitioners presented no evidence that the designation of MDR on the Property is incompatible with existing local and regional water supplies. The evidence was that adequate local and regional water supplies exist. Even if they did not exist, the consequence would be less development than the maximum allowed by the FLUMA. FLUE Policy 4.2 FLUE Policy 4.2 provides in pertinent part: In order to minimize the adverse impacts of development on recharge quality and quantity in high recharge Karst sensitive and springs protection areas, design standards for all development shall be required and defined in the LDRs to address, at a minimum, the following: * * * f. Directing development away from areas with sediment cover that is inadequate to protect the Floridian [sic] Aquifer. * * * h. Prohibiting nonresidential uses within 200 feet of a sinkhole, solution channel, or other Karst feature. This policy sets forth requirements for the content of LDRs, not FLUMAs. Petitioners presented no evidence that sediment cover on the Property is inadequate to protect the Floridan Aquifer or that any non-residential uses would be constructed within 200 feet of a sinkhole, solution channel, or other karst feature under the FLUMA. Marion County has adopted amendments to its Comprehensive Plan to protect springs and karst features.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department determine the FLUMA at issue in this case to be not "in compliance" and take further action as required by Section 163.3184(9)(b), Florida Statutes. DONE AND ENTERED this 4th day of February, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2009.
The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 16th day of September, 2019.
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: The City of Islandia: General Description and Location The City of Islandia is a municipality situated within the jurisdictional boundaries of Dade County, Florida. It was incorporated in 1961. The City is located in an environmentally sensitive area in the southeastern corner of the county several miles east of the mainland. The City is separated from the mainland by Biscayne Bay and is accessible only by boat, seaplane, or helicopter. The City consists of 42,208 acres of submerged and non-submerged land, 41,366 acres of which are owned by the federal government and are part of Biscayne National Park. Biscayne National Park Biscayne National Park was established as a national monument in 1968. Twelve years later it was designated a national park. The park was established because of the unique natural resources within its boundaries. Its designation as a national park promotes the preservation and protection of these valuable resources. The park attracts visitors who engage in passive, marine-oriented recreational activities, such as fishing and snorkeling. Some development has taken place within the park. Among the structures currently standing are the buildings that house the park rangers who work and reside in the park and the docks that are used by those who travel to and from the park by boat. The City's Privately Held Land The remaining 842 acres of land in the City are owned by twelve private landowners, five of whom serve on the Islandia City Council. This land contains no infrastructure and is almost entirely undeveloped. As a result, it is in virtually pristine condition. Because the privately held land in the City is part of the same ecosystem as Biscayne National Park, the development of the privately held land will necessarily have an impact on the activities in the park. Of the 842 acres of privately held land in the City only approximately three acres consist of uplands. These uplands, at their highest elevation, are only four feet above sea level. The other 839 acres of privately held land are submerged bottom lands of Biscayne Bay and the Atlantic Ocean. The privately held land in the City is located in an area of coastal barrier islands known as the Ragged Keys. These islands lie between Biscayne Bay and the Atlantic Ocean. They are separated from one another by surge channels, through which the ocean waters enter the bay. Because of their location and low elevation, these islands are extremely vulnerable to the threat of storm surges and coastal flooding. It therefore is imperative that individuals on the islands evacuate to safety as soon as possible in advance of any storm or hurricane. 2/ The Coast Guard, which assists in the early evacuation of coastal residents, removes its assets from the water when wind speeds reach 35 miles per hour. This heightens the need for those on the islands to leave before the weather takes a turn for the worse. There are five Ragged Keys in private ownership. Ragged Key One, the northernmost of these islands, is surrounded by an old, breached bulkhead. Tidal waters enter where the bulkhead is breached. Coastal wetland vegetation is the only vegetation found on the island. Ragged Key Two is totally submerged and has no uplands. Mangroves are scattered throughout the island. Unlike Ragged Key Two, Ragged Key Three includes some uplands. Its shoreline, however, is fringed with white, red and black mangroves, vegetation associated with wetlands. Mangroves play a vital role in maintaining the health of the Biscayne Bay ecosystem. They contribute a leafy matter, known as detritus, to the nutrient budget of the bay. In addition, mangroves help filter upland runoff and protect against shoreline erosion. Most of Ragged Key Four is covered with mangroves. Red mangroves dominate, but there are also white and black mangroves. A narrow band of uplands, approximately 30 to 50 feet in width, runs through the center of the island. The island's upland vegetation consists of an unusual, and therefore ecologically significant, tropical hardwood hammock species not found on the mainland. Ragged Key Five, the southernmost of the privately owned Ragged Keys, is completely inundated by tidal waters twice a day. The vegetation on the northern one-half to two-thirds of the island consists almost exclusively of mangroves, with white mangroves dominating. Mangroves are also found on the island's southeastern perimeter. Less than an acre of uplands lies toward the center of the island. The dominant vegetation on these uplands is Australian pine. The privately held bottom lands in the City that are on the ocean side of the Ragged Keys consist of a number of species of hard coral as well as soft coral and sponges not found further to the north. Consequently, these hard- bottom communities are very significant ecologically. The privately held bottomlands in the City that are on the bay side of the Ragged Keys are covered almost entirely with seagrass beds. These seagrass beds are an essential component of the bay's ecosystem. They help to maintain water quality by stabilizing and filtering sediment and serve as habitat and food for fish and other marine organisms. This is significant from not only an environmental perspective, but from an economic perspective as well, inasmuch as commercial fishing is an important industry in the area. Seagrasses depend on light for their survival. If they are beneath, or otherwise shaded by, a structure, such as a "stilt home" or dock, or deprived of light as a result of construction-related turbidity, they will die. Water depths in the City on both the ocean and bay side of the Ragged Keys are extremely shallow. In most areas, the depth of the water never exceeds four feet. Consequently, one has to be a competent boater to navigate in these areas without running aground. Boats that travel in these shallow waters, even if piloted by competent navigators, are likely to scrape and scar the ocean and bay bottom and damage the seagrass and hard-bottom communities that exist there. Furthermore, these boats are likely to leave behind in the waters they have traversed bilge waters, oils, greases and metallic-based paints from their undersides. This has the effect of lowering water quality. Fortunately, boating activities in these waters have been limited to date and, consequently, these activities have resulted in only minor environmental damage. Substantial damage will occur, however, if boat traffic on these waters increases significantly. Comprehensive Plan Preparation and Adoption The City's comprehensive plan was drafted by the staff of Robert K. Swarthout, Inc., a consulting firm that specializes in land use planning. Before retaining the services of the Swarthout firm, the City's governing body, the City Council, voted that, in the plan, all of the privately held land in the City would be designated for "residential" use and that the allowable density would be six units per acre. Sound planning dictates that such decisions be made only after the character of the land and its suitability for development are analyzed. A proposed plan for the City was developed by the Swarthout firm. Following a vote of the City Council, the proposed plan was transmitted to DCA. Upon its receipt of the proposed plan, DCA distributed copies to other governmental agencies, including Dade County, and solicited their comments. After receiving these comments and conducting its own review, DCA sent to the City a report containing DCA's objections, recommendations and comments regarding the City's proposed plan. In response to this report, the Swarthout firm drafted certain modifications to the proposed plan. The proposed plan, as so modified, was adopted by the City Council on January 13, 1989, and thereupon transmitted to DCA. The City Council held public hearings before transmitting the proposed plan and the adopted plan to DCA. The twelve private landowners in the City were notified of these hearings by mail. No one else, including any park ranger residing in the City or any other representative of the federal government, was given direct, individual advance notice of these hearings, nor were the hearings advertised in any newspaper or other publication. In failing to provide advance notice of these hearings to any one other than the City's twelve private landowners, the City Council relied upon the opinion of its attorney that no additional notice was necessary to meet the requirements of the law. Format of the City's Adopted Plan The City's adopted plan focuses upon the 842 acres of privately held land in the City. It does not discuss in great detail the future of Biscayne National Park, which comprises more than 98% of the City's land area. The plan consists of nine elements: future land use; transportation; housing; infrastructure; coastal management; conservation; recreation and open space; intergovernmental; and capital improvements. Each element contains goals, policies and objectives. In addition, the future land use element includes a future land use map and the capital improvements element includes both an implementation section and a section prescribing monitoring, updating and evaluation procedures. The document containing the City's adopted plan also describes and discusses the data and analysis upon which the plan is purportedly based. According to the document, however: Only the following segments of this document were adopted by the City Council: Goals, Objectives and Policies Capital Improvements Element Implementation section Future Land Use map Monitoring, Updating and Evaluation Procedures Future Land Use Element The future land use element of the City's adopted plan sets forth the following goals, objectives and policies: Goal 1 To provide for minimal residential development compatible with the natural resources of the National Park and balance of the islands. Objective 1.1 By 1994, achieve first phase new development sited appropriately for the topographic/flood conditions and infrastructure compatible with soil conditions. Policy 1.1.1 As the residential development occurs, require acceptable private paths, drainage, water and sewer systems through the development code; special care is needed due to limited wellfield and soil absorption areas. Policy 1.1.2 Private automobiles shall not be permitted; adequate boat or aircraft access facilities shall be required by the development code. Policy 1.1.3 Development permits shall be issued only if facilities meeting the following levels of service can be made available concurrent with the impacts of development: -Sewage disposal: septic tanks 3/ or package treatment plants providing a treatment capacity of 300 gallons per residential unit per day -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners 4/ -Circulation: pedestrian and golf cart paths -Open space: public and private of 175 acres per permanent resident Objective 1.2 Ensure reasonable protection of historic and natural resources (particularly) mangroves as development occurs. See policy for measurability Policy 1.2.1 Within one year of transmitting this plan, a development code will be prepared to assure adequate protection of the vegetative communities (particularly mangroves) as well as sensitive to hurricane considerations and the bay bottom ecology. Policy 1.2.2 The City shall consult with the National Park Service should any archaeological sites be found on the privately owned islands. Policy 1.3 Facilitate planned unit development projects through the 1989 adoption of a development code. Policy 1.3.1 Within one year of transmitting this plan, include Planned Unit Development provisions in the zoning provisions of a development code to help achieve residential development. Objective 1.4 By July 1989, adopt a development code to implement land use policies that correspond to the category on the Future Land Use Plan and minimize hurricane evacuation. Policy 1.4.1 The following land use densities, intensities and approaches shall be incorporated in the land development code; development will be required to use these densities in a mixed use Planned Unit Development format -Residential: Single-family detached and attached units at a density of 6 units per acre or less in a PUD mixed-use format. -Commercial: Supporting boat clubs/marinas, restaurants and light convenience retail; this would either be in the residential PUD or the National Park Recreation category i.e. not shown on the map. -Recreation and Open Space: This category includes primarily the National Park. The future land use map depicts only two future land uses: "recreational," which is described on the map as constituting lands of the "National Park and City Park;" and "residential," which is indicated on the map as constituting "[l]ess than 6 units per acre in Planned Unit Developments with supporting service commercial." Because Policy 1.4.1 of the future land use element permits a maximum "residential" density in the City of "6 units per acre" whereas the future land use map reflects that the City's maximum permissible "residential" density is "less [emphasis supplied] than 6 units per acre," these two provisions of the City's adopted plan are inconsistent. On the future land use map, only Ragged Keys One through Five are designated for "residential" use. The remaining land in the City, including the privately held bay and ocean bottom surrounding these islands, is designated on the map for "recreational" use. There are statements in the plan document that reflect that "residential" development is contemplated not just for the five Ragged Keys, but for the entire 842 acres of privately held land in the City. Such statements include the following which are found in the discussion of the data and analysis allegedly underlying the future land use element: Residential Capacity- The islands under municipal jurisdiction have not been developed, and there are only 842 acres of suitable vacant land for the development of residential units. Based on the Land Use Plan PUD density of six units per acre, this would suggest a build-out of 5,000 housing units. * * * Needs Assessment: Not Applicable and Other Issues- There are no incompatible or blighted uses. Some private redevelopment might be involved in upgrading the boat dock and several recreational housing units. Rather than an analysis of the land required to accommodate the projected population, this is a case where the 842 acres of buildable private land can accommodate a build-out population of about 5,000 although 720 is projected for the year 2000 based upon a projected private market demand for development at five units per acre requiring 78 acres. * * * Future Land Use Plan: Land Use Category- As indicated above, all non-Park Service land and bay bottom (842 acres) is designated "Residential Planned Unit Development With Supporting Commercial;" this will accommodate the projected population. * * * Future Land Use Plan: Impact- It is important to note the minimal impact that the private development area (842 acres), will have on the total area of the City which encompasses 42,208 acres. * * * Future Land Use Plan: Density- Approximately 842 acres, at a density of less than six units per acre, are proposed for development of the recreational units. These statements, however, are not included in those portions of the plan document that were adopted by the City Council and therefore are not part of the City's adopted plan. In addition to depicting future land uses, the future land use map also shows shoreline areas. Beaches, wetlands, and flood plains, however, are not identified on the map. Transportation Element The transportation element of the City's adopted plan contains the following goals, objectives and policies: Goal 1- To meet the unique circulation needs of Islandia. Objective 1.1- As development occurs, achieve an internal circulation system that uses paths for pedestrians, bicycles and golf carts but not automobiles. Policy 1.1.1- By July 1989, enact a development code that requires developers to provide such a path system, a) concurrent with development, and b) that connects with other adjacent developments and the boat dock facilities. Policy 1.1.2- Include development code provisions that require adequate access to the development from the mainland i.e. either by boat or aircraft facilities. Housing Element The following goals, objectives and policies are set forth in the housing element of the City's adopted plan: Goal 1- To provide recreational housing units compatible with the unique locational and environmental character of Islandia. Objective 1.1- Achieve and maintain quality housing with supporting infrastructure. Policy 1.1.1- By July 1989, enact a development code that provides an expeditious review process yet assures concurrent adequate private infrastructure. Policy 1.1.2- Include building and property maintenance standards that will assure that units are maintained in sound condition. Policy 1.1.3- To assure environmentally sound design, City codes shall include building standards (sensitive to hurricanes) and site plan review. Infrastructure Element As evidenced by the following goals, objectives and policies set forth in the infrastructure element of the City's adopted plan, the City intends that infrastructure needs will be met by private developers, rather than by the City through the expenditure of public funds: Goal 1- To provide adequate private infrastructure to serve the projected limited recreational residential development. Objective 1.1- Assure provision of adequate, environmentally sensitive private infrastructure concurrent with development through a 1989 development code. Policy 1.1.1- By July 1989, enact a development code that requires City site plan review with engineering design standards in the areas of water supply, sewage disposal, drainage, solid waste, groundwater recharge and wellfield protection plus incentives for the use of solar energy and solid waste recycling (to reduce disposal quantities by 30 percent). Policy 1.1.2- Require all development to meet the following level of service standards: -Sewage disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day 5/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners. Objective 1.2- Encourage multi-unit water and sewer systems in order to protect the fragile environment through the 1989 development code. Policy 1.2.1- Include planned unit development provisions in the development code to be enacted by July 1989 thereby encouraging joint systems rather than individual wells and septic tanks. 6/ Policy 1,3- Protect wellfield aquifer recharge areas from development. Policy 1.3.1- By 1991, enact development code provisions that require developers to designate their wellfield aquifer recharge areas, and authorize the City to then prohibit development within said areas and related drainage systems. Objective 1.4- Each developer shall provide a mechanism for water conservation. Policy 1.4.1- At the time building permits are issued for the first development, the City and developer shall jointly prepare a water conservation plan for normal and emergency consumption. Coastal Management Element The City's adopted plan contains the following goals, objectives and policies relating to coastal management: Goal 1- To conserve, manage and sensitively use the environmental assets of Islandia's coastal zone location. Objective 1.1- Through the 1989 development code adoption, continue to protect the barrier island function and wildlife habitat. Policy 1.1.1- Retain the integrity of the islands by strictly regulating shoreline dredge and fill through the development code. Policy 1.1.2- Require common open space in conjunction with private development to retain wildlife habitats, wetlands and mangroves and assist in preservation of marine water quality and living resources. Objective 1.2- Through the 1989 development code adoption, include estuarine protection policies and thus assure environmental quality. Policy 1.2.1- The development code shall result in drainage, sewage disposal and shoreline setback policies that protect the estuary. Policy 1.2.2- As private development occurs, the City shall use the County's Biscayne Bay Aquatic Preserve Management Plan as a basis for review and maintain liaison with the Biscayne Bay Management Committee's staff. This will also be the vehicle for coordinating with the City of Miami (which is some 10 miles to the north) in terms of estuarine. Objective 1.3- Continue the current pattern which is all uses, including shoreline uses, are water dependent. Policy 1.3.1- Use the development code to maintain a shoreline use pattern that is either park, natural private land or residential with supporting boat facilities; by definition, all Islandia uses are water dependent. Objective 1.4- Protect the current natural beach and dune configuration. Policy 1.4.1- Through the development code, require any private development to a) setback far enough from the beach to retain the dunes and b) retain the related vegetative cover and wetlands or mitigate on a fair value ratio. Goal 2- To minimize hurricane damage both to property and people. Objective 2.1- Continue the current City policy of not providing infrastructure unless public safety or natural resource preservation so requires. Policy 2.1.1- The City shall not program any municipal infrastructure; private development will provide its own circulation, water and sewer systems. Objective 2.2- Residential development will be limited in amount and density, and setback from the shoreline due to the coastal high hazard area location. Policy 2.2.1- Maintain density controls so that the City will experience only limited new residential development and thereby not jeopardize hurricane evacuation capabilities or undue concentration on the private islands which are the high hazard area. (Analysis explains why directing population away from the coastal high hazard area is not feasible.) 7/ Objective 2.3- By July 1989, adopt development code provisions that assure adequate boat evacuation capability by developers and occupants. Policy 2.3.1- The development code shall require, as a condition of development permit approval, an evacuation plan showing adequate boat or aircraft capability. Objective 2.4- By 1993, prepare an emergency redevelopment plan. Policy 2.4.1- By 1993, the first phase of residential development should be underway; that will permit preparation of a realistic post-disaster redevelopment plan. Currently there is little to "redevelop." Objective 2.5- Preserve both resident and general public access to the beach. Policy 2.5.1- Over 98 percent of Islandia's area is public land with shoreline access. However, the remaining two percent should be developed so as to maximize resident beach access through planned unit development requirements. 8/ Objective 2.6- The City's objective is not to provide any public infrastructure; private developers shall provide infrastructure in conformance with level of service standards, concurrent with development. Policy 2.6.1- Developers shall provide infrastructure, with a design sensitive to hurricane vulnerability, concurrent with the impact of development within a development code concurrency management system and in keeping with the following levels of service: -Sewage Disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day. 9/ -Water: wells providing 300 gallons per residential unit per day. -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically). -Solid Waste: off-island disposal by individual homeowners or other property owners. Conservation Element The following goals, objectives and policies are found in the conservation element of the City's adopted plan: Goal 1- To preserve and enhance the significant natural features of Islandia. Objective 1.1- Continue policies that help achieve compliance with State Department of Environmental Affairs [sic] air quality regulations; see policy for measurability. Policy 1.1.1- Continue to prohibit automobiles in the City. Objective 1.2- By July 1989, require drainage practices that avoid direct development runoff into the ocean or bay. Policy 1.2.1- By July 1989, enact development code provisions that require on-site runoff detention. Objective 1.3- By July 1989, achieve protection of existing vegetation and wildlife communities. Policy 1.3.1- By July 1989, enact development code provisions that require retention of a percentage 10/ of prime vegetative cover and wildlife habitat; particularly mangroves. Policy 1.3.2- These development regulations shall also address preservation/mitigation of the scattered island wetlands and related soils. Policy 1.3.3- Work with Federal park officials to assure that any National Park improvements are sensitive to the mangrove and other environmentally sensitive vegetative/wildlife/ marine habitats. Objective 1.4- By July 1989, have basis to avoid development activities that adversely impact the marine habitat. Policy 1.4.1- By July 1989, enact development code provisions that control dredge and fill activities, and boat anchorages in order to protect the marine and estuarine character, including the fish feeding areas on the Biscayne Bay side of the islands; special care must be taken to avoid any disruption of the tidal channels between the islands. Objective 1.5- When development occurs, achieve carefully located and designed well and sewage disposal systems. Policy 1.5.1- By July 1989, enact development code provisions that require City technical review of all well and sewage disposal systems to assure well water protections, groundwater conservation and sewage effluent control. Policy 1.5.2- When the first phase residential development permits are issued, develop an emergency water conservation program. This element of the City's adopted plan does not contain a land use and inventory map showing wildlife habitat and vegetative communities. Recreation and Open Space Element The recreation and open space element of the City's adopted plan prescribes the following goals, objectives and policies: Goal 1- To provide recreation facilities and open space which are responsive to the leisure-time needs of residents. Objective 1.1- By July 1989, achieve controls that achieve common access to the bay and the ocean. Policy 1.1.1- The City shall enact development code provisions that protect common access to the shoreline as development occurs. Objective 1.2- By July 1989, assure private recreational resources in the limited development projects to complement the National Park. Objective 1.2.1- The City shall enact development code provisions that require private recreational facilities for developments over a certain size, to complement the public National Park. Policy 1.3.1- The City shall urge Congress to retain the National Park thereby providing a Level of Service of at least 57 acres of public open space per permanent resident prior to the year 2000. 11/ Objective 1.4- Ensure the preservation of public and private open space. Policy 1.4.1- By July 1989, enact development code regulations to assure preservation of adequate private open space in conjunction with private development. Policy 1.4.2.- Work with Congress and National Park Service to assure preservation of this public open space resource. Policy 1.4.3- The City shall retain City Key in its ownership for potential use as a municipal park. Intergovernmental Element The following goals, objectives and policies in the City's adopted plan address the matter of intergovernmental coordination: Goal 1 - To maintain or establish processes to assure coordination with other governmental entities where necessary to implement this plan. Objective 1.1- By 1994, at least three of the seven issues listed in the Analysis shall be the subject of formal agreement, assuming development review has been initiated. Policy 1.1.1- The Mayor shall oversee the implementation of the recommendations outlined in the Analysis section of this element. Policy 1.1.2- In particular, the Mayor shall work with County Office of Emergency Management relative to hurricane warning and evacuation mechanisms. Policy 1.1.3- The City shall continue to work with the County and Regional planning agencies in an attempt to reach consensus on a mutually agreeable land use designation for the private islands. Policy 1.1.4- If necessary, the City shall use the South Florida Regional Planning Council to assist in the mediation of any major intergovernmental conflicts; the County land use plan is a potential example. Policy 1.1.5- After development is initiated, the Mayor shall annually issue a report outlining the services the City is providing and providing information on intergovernmental coordination. Policy 1.1.6- The City shall review all development applications in the context of the Biscayne Bay Aquatic Management Plan and maintain liaison with the staff to the Committee responsible for this plan. Objective 1.2- The Mayor shall meet at least annually with the National Park Superintendent to coordinate the impact of the City's development upon adjacent areas. Policy 1.2.1- City officials shall maintain liaison with the National Park Service on any land use or development impacts along their common boundaries. Objective 1.3- By 1999, assure level of service standards coordination with the County relative to solid waste. Policy 1.3.1- As first phase development is completed, City officials shall work with County officials on the long range implications of solid waste disposal to determine adequacy and approach. The "seven issues listed in the [intergovernmental] Analysis" section of the plan document (reference to which is made in Objective 1.1) concern the following subjects: land uses and densities; historic resources; private holdings within the National Park; permitting for construction and related infrastructure; solid waste; Biscayne Bay water quality; and emergency evacuation. The "land uses and densities" issue raised in the Intergovernmental Analysis section of the plan document relates to the alleged inconsistency between the City's plan and Dade County's plan regarding the land use designation of the privately held land in the City. It is asserted in this section of the document that the "Metro-Dade Comprehensive Plan shows the privately owned land in Islandia as 'Parks and Recreation' rather than residential." The following recommendation to resolve this alleged conflict is then offered: To date, the coordination on this issue has been sporadic. 12/ If neither the County nor National Park Service are willing to acquire these islands at a fair price, then the County plan should be amended to show them as residential. The Regional Planning Council can serve as a mediator. Dade County's adopted plan provides the following explanation of the significance of a "Parks and Recreation" land use designation in terms of the development potential of the land so designated: Both governmentally and privately owned lands are included in areas designated for Parks and Recreation use. Most of the designated Privately owned land either possess outstanding environmental qualities and unique potential for public recreation, or is a golf course included within a large scale development. The long term use of such golf courses is typically limited by deed restriction. If the owners of privately owned land designated as Parks and Recreation choose to develop before the land can be acquired for public use, the land may be developed for a use, or at a density comparable to, and compatible with surrounding development providing that such development is consistent with the goals, objectives, policies of the CDMP (the County's plan). This allowance does not apply to land designated Parks and Recreation that was set aside for park or open space use as a part of, or as a basis for approving the density of, a residential development. Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational or entertainment, or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Some of the land shown for Parks is also environmentally sensitive. These areas include tropical hardwood hammocks, high- quality Dade County pineland, and viable mangrove forests. Some sites proposed for public acquisition under Florida's Conservation and Recreational Lands (CARL) program are identified in this category on the LUP (Land Use Plan) map although they may be as small as ten acres in size. Many of these areas are designated on the LUP map as "Environmentally Protected Parks" however, some environmentally sensitive areas may be designated simply as Parks and Recreation due to graphic restraints. All portions of parkland designated Environmentally Protected Parks or other parkland which is characterized by valuable environmental resources is intended to be managed in a manner consistent with the goals, objectives, and policies for development of the applicable environmental resources or protection area. Because it is an environmentally sensitive area, the City of Islandia, including the five Ragged Keys, has been designated "Environmentally Protected" parkland on the County's future land use map. Under the County's plan, the maximum density permitted on land so designated is one unit per five acres. With respect to the issue of historic resources, it is stated in the Intergovernmental Analysis section of the document containing the City's plan that the preservation of such resources within Biscayne National Park is the responsibility of the "National Park Service working with the State Bureau of Historic Preservation (within the Department of State) and the County Historic Preservation Division." Regarding the matter of private holdings within Biscayne National Park, the assertion is made in the Intergovernmental Analysis section of the plan document that "[a]lthough existing formal agreements exist relative to individual life estates and long-term leases by private owners within the Park, there is a need for a formal agreement relative to joint development review and agreements between the National Park Service and the City." As to permitting requirements, the Intergovernmental Analysis section of the plan document acknowledges "the array of permits required [from federal, state and county agencies] for private development and related infrastructure" in the City. In view of the regulatory authority of these agencies, the recommendation is made that the "City development code should establish a systematic review process flow chart meshing with the concurrency management system." Concerning the issue of solid waste, it is suggested in the Intergovernmental Analysis section of the plan document that "once first phase development is completed, the off-island disposal of solid waste by residents should be monitored for effectiveness" and if "this system is not working, a City-County collection arrangement would have to be developed." With respect to the issue of the water quality of Biscayne Bay, it is noted in the Intergovernmental Analysis section of the plan document that the County's "Biscayne Bay Aquatic Preserve Management Plan (Biscayne Bay Management Plan) can serve as a guide to intergovernmental estuary planning and protection as development occurs" and that therefore the "City should consult with the [County's Biscayne Bay Management Committee] staff when development proposals reach preliminary status." 13/ The Biscayne Bay Management Plan is codified in Chapter 33-D of the Metro-Dade County Code. It identifies guidelines and objectives designed to optimize the quality and quantity of marine life in the bay, to protect the bay's endangered and rare plants and animals, and to avoid irreversible and irretrievable loss of the bay's resources. The following are among the guidelines set forth in the plan: Coastal construction should be compatible with the Bay's natural features. . . * * * 8. Siting of new marinas and docking facilities should avoid use of shoreline areas containing viable submerged communities and near-shore areas of inadequate navigational depths. Such facilities should not negatively impact existing water quality. * * * The total impact from the many individual development or user activities along the Bay shoreline should not be allowed to negatively affect the Bay's biological, chemical or aesthetic qualities. Facilities in and over Bay waters and its tributaries should only be constructed if their development and use are water- dependent. Concerning the issue of emergency evacuation, the observation is made in the Intergovernmental Analysis section of the document that the "City's hurricane vulnerability makes an effective early warning imperative." It is therefore recommended that "[w]hen development occurs, the City should formalize an arrangement with the County 14/ including formal contacts, evacuation route/shelter designations and boat monitoring mechanism." 15/ Capital Improvements Element The capital improvements element of the City's adopted plan establishes the following goals, objectives and policies: Goal 1- To undertake municipal capital improvements when necessary to complement private new development facilities, within sound fiscal practices. Objective 1.1- The Mayor shall annually monitor public facility needs as a basis for recommendations to the City Council. Policy 1.1.1.- Engineering studies shall form the basis for annual preparation of a five- year capital improvement program, including one year capital budget if and when such municipal projects are deemed necessary. This element shall be reviewed annually. Policy 1.1.2- Overall priority for fiscal planning shall be those projects that enhance residential development and the environment, as per Land Use Plan. Policy 1.1.3- In setting priorities, the following kinds of criteria will be used: -Public Safety implications: a project to address a threat to public safety will receive first priority. -Level of service or capacity problems: next in priority would be projects needed to maintain the stated Level of Service. -Ability to finance: A third criteria is the budgetary impact; will it exceed budget projections? -Quality of life projects: lowest priority would be those projects not in categories 1 or 2 but that would enhance the quality of life. -Priority will be given to projects on islands experiencing development. Policy 1.1.4- Pursue a prudent policy in terms of borrowing for major capital improvements; in no case borrow more than two percent of the total assessed value in any one bond issue or loan. Objective 1.2- By July 1989, the City shall adopt a development code containing a concurrency management system to integrate the land use plan, capital improvement element and levels of service. Policy 1.2.1- City officials shall use both the Future Land Use Plan and financial analyses of the kind contained herein as a basis for reviewing development applications, in order to maintain an adequate level of service; all except parks are expected to be private: -Sewage disposal: septic tanks or package treatment plants providing treatment capacity of 300 gallons per residential unit per day 16/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid Waste: off-island disposal by individual homeowners or other property owners -Public open space: 57 acres per permanent resident Objective 1.3- Major future development projects shall pay their fair share of the capital improvement needs they generate. Policy 1.3.1- The proposed development code and related review process shall require on-site detention and drainage structures acceptable to regional environmental agencies plus private water and sewer systems. Policy 1.3.2- The development code preparation shall include the consideration of impact fees. Policy 1.3.3- Pedestrian paths shall be installed as a part of all new development. Objective 1.4- Achieve mechanisms whereby public and private facility requirements generated by new development are adequately funded in a timely manner. Policy 1.4.1- The development code shall specify that no development permit shall be issued unless assurance is given that the private (or possibly public) facilities necessitated by the project (in order to meet level of service standards) will be in place concurrent with the impacts of the development. The capital improvements element of the City's adopted plan also contains an Implementation section which provides as follows: Five-Year Schedule of Capital Improvements Not applicable; no deficiencies and no projects planned for 1990-1994 period. Programs For purposes of monitoring and evaluation, the principal programs needed to implement this Element are as follows: Initiate an annual capital programming and budgeting process as soon as warranted by prospective projects; use project selection criteria. Use engineering or design studies to pinpoint the cost and timing of any potential needs or deficiencies as they are determined. Amendments to the development code to a) assure conformance to the "concurrency" requirements relative to development orders, levels of service and public facility timing, and b) explore selected impact fees e.g. for park, boat dock and beach renourishment. Data and Analysis If a comprehensive plan is to be an effective tool in managing a community's future growth and development, it must be based, not upon unsubstantiated assumptions or wishful thinking, but rather upon appropriate data and reasoned analysis of that data. Typically, the first step in developing a comprehensive plan is to ascertain the projected population of the community. Once such a projection is made, the amount of land needed to accommodate the projected population must then be determined. The analysis does not end there, however. Before any decision is made regarding how, and to what extent, the community's land will be used in the future to meet the needs of the projected population, the character of the land, including its soils, topography, and natural and historic resources, must be examined so that its suitability for development can be determined. Only after such a suitability determination is made and the carrying capacity of the land is evaluated is it appropriate to assign land use designations and densities. The City Council did not follow this conventional approach in developing its comprehensive plan. Instead, it used a methodology that is fundamentally flawed and not professionally accepted. Without collecting and analyzing available information concerning the amount of land needed to accommodate the City's future population and the character and suitability of the City's land to meet the needs of the population, it arbitrarily determined at the outset of the planning process that the privately held land in the City would be designated for "residential" use and that a maximum density of six units per acre would be allowed. It appears that the City Council simply assumed, based on nothing more than the fact that the land was in private ownership, that it was suitable for residential development at six units per acre. Had the City Council examined the information that was readily available to it concerning the character of the privately held land in the City, it undoubtedly would have realized that such land is actually unsuitable for such intense residential development. The City Council, through its consultant, the Swarthout firm, subsequently, but prior to the January 13, 1989, adoption of the City's plan, projected the population of the City and the amount of land needed to accommodate the anticipated population. It estimated that the City's population would be about 300 in 1994 and approximately 720 in the year 2000 and that 78 acres of land would be needed to accommodate the projected population in the latter year. These projections, however, were not made pursuant to a professionally accepted methodology inasmuch as they were based, at least in part, upon the preconceived notion that the City's plan should permit residential development of the privately owned land in the City at a density of six units per acre. In making these projections, the City Council assumed that all of the 842 acres of privately held land in the City would be subject to residential development. The future land use map adopted by the City Council, however, designates only a small portion of that land, the approximately 12 acres comprising the five Ragged Keys, for residential use. This is considerably less land than that the City Council projected would be needed to accommodate the City's population in the year 2000. The final land use decisions reflected on the future land use map were not the product of a thoughtful and reasoned analysis of issues that should have been considered before such decisions were made. The City Council failed to adequately consider and analyze, among other things, the following significant matters before making these decisions and adopting the City's comprehensive plan: the character of the five Ragged Keys and their suitability for residential development at a density of six units per acre, particularly in light of their location in a flood prone area; the adverse impact that such development, including related housing and infrastructure construction activities, would have on the area's natural resources and fragile environment; 17/ whether the potable water 18/ and sanitary sewer needs generated by such development can be met given logistical and environmental constraints; 19/ the financial feasibility of, and problems associated with, siting infrastructure on the land to be developed; 20/ whether the future residents of the City can be safely evacuated from the City in the face of a hurricane or tropical storm given the City's location in a coastal high-hazard area accessible from the mainland only by water and air; 21/ and the need for boat docking and other water-dependent facilities. The City's adopted plan therefore is not supported by appropriate data and analysis. The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties. The Regional Plan addresses issues of regional significance. Goal 51.1 of the Regional Plan provides as follows: By 1995 the amount of solid waste placed in landfills will be reduced by 30 percent over the 1986 volume. A local government's comprehensive plan must establish a level of service for solid waste disposal if it is to be consistent with, and further, this goal of the Regional Plan. The City's comprehensive plan does not do so. Goal 57.1 of the Regional Plan states as follows: New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided. The City's comprehensive plan contemplates new development in areas where there are no existing nor planned public facilities. Although the plan suggests that infrastructure will be provided by private developers, there is no indication that any consideration was given to the costliness of such a venture. Goal 58.1 of the Regional Plan imposes the following requirement: Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of development on the surrounding environment. The State Comprehensive Plan The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance. Among other things, it requires "local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents [and] to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters." It also reflects that it is the policy of the State to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development" and to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Dade County Dade County is a political subdivision of the State of Florida. It has regulatory authority over the tidal waters, submerged bay bottom and coastal wetlands in the City of Islandia. It also has the authority under its Home Rule Charter to prescribe appropriate land uses and planning principles for the entire area within its territorial boundaries. Dade County municipalities, however, are free to deviate from the County's plan in fashioning a comprehensive plan of their own. If the residential development permitted by the City's adopted plan occurs, it will have a substantial adverse impact on areas within Dade County's jurisdiction, including Biscayne Bay, which have been designated as areas warranting protection and special treatment. Tropical Audobon Society The Tropical Audobon Society is a not-for-profit Florida corporation which engages in educational, scientific, investigative, literary and historical pursuits relating to wild birds and other animals and the plant, soil, water and other conditions essential to their development and preservation. On occasion, Tropical and its members engage in activity in the City of Islandia. They participate from time to time in census surveys of the City's bird population. In addition, they conduct tours through the City for people who want to observe the area's wildlife. The overwhelming majority of Tropical members are South Floridians. None of its members, however, reside or own land in the City of Islandia. Neither Tropical, nor anyone acting on its behalf, submitted oral or written objections during the City Council proceedings that culminated in the adoption of the City's comprehensive plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED the Administration Commission issue a final order which: (1) dismisses the Tropical Audobon Society's petition to intervene; (2) finds the City of Islandia's adopted comprehensive plan not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the foregoing Conclusions of Law; (3) directs the City to remedy these specific deficiencies to bring the plan "in compliance;" and (4) imposes appropriate sanctions authorized by Section 163.3184(11), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990.
The Issue The issue is whether Polk County's small scale development amendment (CPA2003S-02) adopted by Ordinance No. 03-03 on January 22, 2003, as later amended by Ordinance No. 03-19 on March 15, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Berry is the owner of a tract of land located on the southwest corner of the intersection of Eagle Lake Loop Road (County Road 540-A) and Pollard Road in Section 16, Township 29, Range 26 in the eastern part of unincorporated Polk County, Florida. The property lies south of the City of Winter Haven, east-southeast of the City of Eagle Lake, less than a mile south of Lake Eloise (on which Cypress Gardens is located), and west of U.S. Highway 27. Because Berry owns property within the County, and submitted oral and written comments to the County prior to the adoption of the challenged amendment, it has standing to participate in this action. On July 19, 2002, Berry filed an application with the County Planning Department seeking to change the land use on 9.99 acres (or just below the threshold of 10.0 acres for a small scale amendment) from RL-1 to Neighborhood Activity Center (NAC) to include approximately 4.95 acres of various neighborhood specialty shops such as a grocery store, drug store, convenience store, and dry cleaners, with the remaining acreage used as a mini-warehouse self-storage facility. In September 2002, Berry amended its application by seeking to change 3.93 acres from RL-1 to CC and 6.06 acres from RL-1 to BPC-1. The application was assigned Case File No. CPA2003S- 02. Under the County's review process, the application is first reviewed by the County Development Review Committee (Committee), then by the County Planning Commission (CPC), which either accepts or rejects the Committee's recommendation, and finally by the Board of County Commissioners (Board), which either adopts the amendment, adopts the amendment as amended by the Board, or rejects the amendment. After conducting a preliminary review of the application, on September 16, 2002, the Committee conducted a public hearing and voted to recommend approval. The matter was then transmitted to the CPC, which conducted a meeting on October 9, 2002, and recommended that the Board approve the amendment. On January 22, 2003, by a 3-2 vote, the Board adopted CPA2003S-02 changing the designation on the FLUM of the County Comprehensive Plan (Plan) as proposed by Berry. This was confirmed by the County's adoption of Ordinance No. 03-03. On February 21, 2003, Petitioners filed their Petition challenging the Berry amendment. The matter was again placed on the Board's agenda on March 19, 2003, after the County discovered that Ordinance No. 03-03 had inadvertently changed the land use on the entire parcel to CC rather a mix of CC and BPC-1. In addition, there were minor errors in the legal description of both the 3.93 and 6.06-acre parcels. Accordingly, Ordinance No. 03-19 was enacted to correct those errors. A second Petition for Formal Administrative Proceedings (with essentially the same allegations, but also adding an allegation that the same property had been improperly subject to two small scale amendments within a 12- month period) was filed by Petitioners on March 19, 2003, challenging the action taken in Ordinance No. 03-19. At the outset of the final hearing, Petitioners voluntarily dismissed two allegations contained in their Petition. In their Proposed Recommended Order, Petitioners have further narrowed the issues by addressing only the following allegations: that the property which is the subject of this proceeding exceeds 10.0 acres in size and therefore cannot qualify as a small scale amendment; and that the amendment violates Future Land Use Element (FLUE) Policies 2.102-A1, 2.113-B-3, 2.113-B-4, 2.110-C3, and 2.113-B-1 and is thus internally inconsistent with the Plan. These issues will be discussed separately below. All other allegations contained in the second Petition and the parties' Pre-Hearing Stipulation are deemed to have been withdrawn or abandoned. Because the change in the FLUM was filed and approved as a small scale plan amendment under Section 163.3187(1)(c), Florida Statutes (2003),1 a compliance review of the amendment was not made by the Department of Community Affairs (DCA). See § 163.3187(3)(a), Fla. Stat. Standing of Petitioners Durham is a realtor/developer who owns property within 250 feet of Berry's property and resides at 10 Lake Eloise Lane, Southeast, Winter Haven, Florida. He made oral and written comments to the County prior to the adoption of the amendment. As such, he qualifies as an affected person under Section 163.3184(1)(a), Florida Statutes, and has standing to bring this action. CPPI began as an association in November 2002 and was later incorporated in February 2003. Presently, it has around 100 members, all of whom reside in the County. According to its chairperson, its purpose is to "help educate and inform residents of Polk County . . . towards growth matters that may affect their daily lives." The organization "encourages donations" from its members; it was scheduled to have conducted its first annual meeting on January 10, 2004; and members prepared and circulated petitions opposing the amendment to residents of the area in December 2002 and January 2003. At least one member of CPPI made written and oral comments on its behalf to the County prior to the adoption of the amendment in March 2003. There is no evidence, however, that CPPI (as opposed to its individual members) owns property or owns or operates a business within the County. Therefore, it lacks standing to file a petition. The land and surrounding uses Berry owns a triangle-shaped parcel of land (the parent parcel) totaling around 14 acres which fronts on Eagle Lake Loop Road (a 24-foot wide urban collector road) to the north, Pollard Road (a local road) to the east, and a CSX railroad track, with right-of-way, on its western side. (Pollard Road dead ends at Eagle Lake Loop Road, and another collector road, Eloise Loop Road, continues to the north from the intersection). Pollard Road provides access to eight nearby single-family homes, which lie south of the Berry property and front on Pollard Road, and eventually terminates at the City of Winter Haven's Sewage Treatment Plant (an institutional use), which lies slightly more than a mile south of the site. To the west of the site directly across the railroad tracks and fronting on Eagle Lake Loop Road is additional property owned by Berry and on which were once located the original Berry corporate offices. The Berry office buildings are now used, at least partially, by other tenants. Although the land across the railroad tracks is classified as Residential Suburban (RS), the property can be used for offices since the buildings were constructed, and office use began, prior to the adoption of the Plan. Directly across Pollard Road to the east is a vacant 10-acre tract of land owned by the Baptist Ridge Association, which intends to construct a church on the property. Berry's property is now classified as RL-1, a land use classification which "is characterized by single-family dwelling units, duplex units, and small-scale multi-family units." Since at least the 1950s, however, or long before the County adopted its Plan, the property has been used primarily for agriculture purposes (citrus groves); therefore, Berry is grandfathered to continue this non-conforming use on its property. Presently, the entire tract of land is undeveloped and largely covered by an orange grove, which Berry describes as "past maturation and is declining." Citrus trucks and trailers have been parked on the extreme northwestern corner of the parent parcel and are used in conjunction with the citrus operation. Except for the former Berry offices, a nearby beauty salon operating out of a house, and a convenience store about three-quarters of a mile away, which all began operation before the Plan was adopted and are grandfathered as non- conforming uses, and the City of Winter Haven's large tract of institutional land to the south, all of the property within slightly less than a one-mile radius of the Berry property is classified in various residential land use categories with only residential uses. The Amendment As noted above, Berry has owned the subject property for many years. In 1987, Berry (then under the name of Jack M. Berry, Sr.) made application with the County for a zoning change on the property from Rural Conservation (RC) to Commercial (C-3) to allow typical commercial uses. The application was ultimately denied by the County on the ground, among others, that the zoning district being proposed was inconsistent with the Plan, "given the residential development pattern in the area." At least partly on the theory that the area has changed substantially in the last 15 years, Berry has filed (and the County has approved) an application seeking to change the land use on the property to commercial uses. Berry has carved out of the parent parcel two smaller parcels totaling 9.99 acres in size and seeks to change the land use on the northern parcel (3.93 acres) to CC and the land use on the southern parcel (6.06 acres) to BPC-1. The remaining land in the parent parcel, which consists of a 0.43-acre triangle-shaped parcel on the northwestern corner of the parent parcel and now used by citrus trucks, and a vacant 2.74-acre triangle-shaped parcel on the southern end, will remain R-1. (However, all parties agree that if the amendment is approved, these remaining parcels will be unsuitable for residential development.) In addition, strips of land ranging from 22 to 28 feet in width which front on Eagle Lake Loop Road and Pollard Road will be dedicated to the County for right-of-way and have not been included in the 9.99-acre amendment. Presumably, the proposed change is being done in this manner so that the total acreage is less than 10.0 acres, which qualifies the application to be processed as a small scale development amendment rather than a regular plan amendment and subject to DCA review and approval. If the change is approved, the northern part of the parcel (3.93 acres) will be changed to CC to develop convenience commercial uses. Under the Plan, the most typical tenant in this category is a convenience store, while other typical tenants include laundry, dry cleaning, barber, restaurant, gas station, and office uses. The southern (and larger) portion of the tract will be changed to BPC-1. The most typical tenant in this category is "[o]ne or more light- assembly plants, or warehouse facilities," which include a mini-warehouse storage facility. Other typical tenants described in the Plan are offices, distribution centers, research and development firms, and high-density residential, with proper buffering. (Berry says it intends to build a mini-warehouse facility on the southern parcel; however, any of the above described uses could be placed on the property if the change is approved.) Petitioners' Objections In broad terms, Petitioners have contended that the small scale amendment actually involves a use of more than 10 acres since the strips of land being dedicated as right-of-way to the County must be counted as a part of the land being amended. They also contend that the plan amendment violates five FLUE policies and is therefore internally inconsistent with the Plan. A small scale development amendment can only be adopted if "[t]he proposed amendment involves a use of 10 acres or fewer." See § 163.3187(1)(c)1., Fla. Stat. The parties have agreed that the legal description of the parcel subject to the change includes only 9.99 acres, or less than the 10-acre threshold. However, prior to the development of the site, Berry intends to dedicate to the County two strips of land, one fronting on Eagle Lake Loop Road (28 feet wide), and the other on Pollard Road (22 feet wide), for future right-of-way for some public purpose. Petitioners contend that the right-of-way constitutes essential infrastructure for the development and must be included as a part of the amendment. If this land is added to the amendment, the total acreage would obviously exceed 10.0 acres. The dedicated land is not "essential infrastructure" needed for the development activities on the land, since two roadways (Eagle Lake Loop Road and Pollard Road) already exist on the northern and eastern boundaries of the property, and they are sufficient in size to provide ingress to, and egress from, the property. Instead, the County will "bank" the land in the event some form of right-of-way activity is needed in the future. It is noted that Eagle Lake Loop Road was recently widened to 24 feet, and it is not anticipated that a further widening will occur for a number of years. There is nothing in the Plan which requires an applicant for an amendment to include all of its property in a proposed amendment, or prevents an applicant from leaving a residual piece of property out of the application. Therefore, Berry was not required to include in the amendment the right- of-way or the two smaller residual pieces of property that will remain R-1. Finally, assuming arguendo that Petitioners' contention is correct, that is, that an applicant must include right-of-way land dedicated to the local government in the total acreage calculation, Berry could still lawfully comply with the 10-acre threshold by simply reducing the other acreage being changed to CC or BPC by the amount of land being dedicated to the local government for right-of-way. Therefore, it is found that Berry has not improperly excluded from the amendment land necessary for essential infrastructure so as to violate Section 163.3187(1)(c)1., Florida Statutes, as alleged by Petitioners. Policy 2.102-A1 requires compatibility between adjacent uses. More specifically, it provides that: Land shall be developed so that adjacent uses are compatible with each other, pursuant to the requirements of other Policies in this Future Land Use Element, so that one or more of the following provisions are accomplished: there have been provisions made which buffer incompatible uses from dissimilar uses; incompatible uses are made to be more compatible to each other through limiting the intensity and scale of the more intense use; uses are transitioned through a gradual scaling of different land use activities through the use of innovative development techniques such as a Planned Unit Development. Therefore, as the Plan is now written, so long as Berry develops the land in a manner which accomplishes at least one of the three "provisions" in paragraphs a - c of the policy, so as to make the adjacent uses compatible, the proposed land use change is permissible. As noted above, except for a few non-conforming uses adjacent to, or near the property, virtually all of the area around the Berry property is designated for residential use. The area to the north and northeast is developed with up-scale (with some homes ranging to as high as $1 million in value), low density, large lot, single-family residential subdivisions, including Harbour Estates, Cedar Cove, Cypress Cove, Gaines Cove, and Valhalla. To the east of the site are more subdivisions, including Eloise Place, Skidmore, Cypress Point, Lake Eloise Estates, Eloise Pointe Estates, a mobile home park, and Little Lake Estates. The lands to the south are primarily agriculture and in active citrus groves, with eight single-family homes on Pollard Road. Finally, a church will be built on the property directly across the street from the Berry property at the southeast corner of the intersection of Eagle Lake Loop Road and Pollard Road. The County Planning Director agrees that a convenience store (which is an authorized use on CC land), standing alone, is incompatible with adjacent single-family residences. Given this acknowledgement, and the fact that a non-binding, proposed site plan submitted by Berry with its application does not provide for any buffering between the commercial uses and the residential areas, Petitioners contend that none of the conditions required for compatibility in paragraphs a through c have been met, and thus the policy has been violated. The County has made clear, however, that when a final site plan is submitted, there must be "provisions [in the site plan] . . . which buffer incompatible uses from dissimilar uses," as required by the policy. Assuming that this is done at the site plan stage, at least one of the three provisions will be accomplished, thereby satisfying the compatibility requirement. This being so, the plan amendment does not violate the policy and in this respect is not internally inconsistent with the Plan. Petitioners next contend that the amendment is inconsistent with Policy 2.110-C3, which contains locational criteria for CC property. One such criterion requires that "Convenience Centers shall be located at the intersections of arterial and/or collector roads." Because the property is at a T-shaped intersection (as opposed to a traditional cross intersection with four directions for traffic to move off the site), Petitioners assert that the property is not located at an "intersection" within the meaning of the policy. Eagle Lake Loop Road, on which the northern boundary of the property fronts, is designated as an urban collector road. That road forms an intersection with Pollard Road (a local road) and Eloise Loop Road (also an urban collector road), which meets Eagle Lake Loop Road from the north at the intersection, and then makes a 90 degree turn to the east. (When Eagle Lake Loop Road continues to the east beyond the intersection, it turns into Eloise Loop Road, and later into Thompson Nursery Road, until it eventually intersects with U.S. Highway 17.) There is no dispute that the two collector roads (Eagle Loop Lake Road and Eloise Loop Road) form a T intersection, rather than a traditional cross intersection. For many years, however, the County has considered a T intersection and a cross intersection to be the same in terms of satisfying Plan requirements. Indeed, at the present time, at least four other CC designated properties within the County are located at T intersections. The County's interpretation of the policy is consistent with sound planning principles, is reasonable and logical, and is more persuasive than the contrary view offered by Petitioners. Accordingly, it is found that the amendment does not conflict with Policy 2.110- C3. Petitioners also contend that the amendment is inconsistent with Policy 2.113-B-3, which provides that "Business-Park Centers shall be located with consideration being given to regional transportation issues, and should be located at the intersections of arterial roads, and preferably on a fixed-route mass-transit line." (Emphasis added.) The use of the word "should" (rather than "shall") is intended to state a preference, but not an absolute requirement, that BPC lands be located at the intersections of arterial roads. According to the County's Planning Director, this is because "most cases that come [before the County] don't meet the ideal situation" of satisfying every requirement, and the County has used this permissive language to give itself some degree of flexibility in handling cases that do not meet every Plan requirement. Therefore, even though it is preferable that BPC land be located at the intersection of arterial roads, this requirement is not mandatory, and the County has the flexibility to approve a BPC land use change at property not sited at the intersection of arterial roads. In contrast to the permissive language described above, Policy 2.113-B-4 provides that development within a Business-Park Center shall conform to certain development criteria, including one that Business-Park Centers shall have frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves an arterial roadway. Business-Park Centers shall incorporate the use of frontage roads or shared ingress/egress facilities wherever practical. In this case, the closest arterial roadway to Berry's property is State Road 17 to the west, which is four miles away, while State Road 60, another arterial roadway, is approximately six miles to the south. These arterial roads must be accessed, at least at the beginning of the trip, by Eagle Lake Loop Road, a two-lane, 24-foot wide urban collector that runs through predominately residential neighborhoods with some homes having fences within a foot or two from the road. The County interprets the requirement that BPC land have "direct access to an arterial road" to be satisfied if the property fronts on a collector road, which then provides access to an arterial road. Under the County's interpretation, the requirement is met since Eagle Lake Loop Road provides access (albeit 4 to 6 miles away) to State Roads 17 and 60. The County says it has consistently interpreted this provision in this manner for at least ten years, and has approved other applications for changes to BPC when those parcels were located on urban collector roads. (The distance between these other BPC parcels and the arterial roads is not of record, however.) While Policy 2.113-B-1 provides that Business-Park Centers are "not intended to accommodate major commercial or other high-traffic producing facilities," they "are intended to promote employment opportunities within the region by allowing for the establishment of office parks, research and development parks, areas for light-industrial facilities, distribution centers, and mixed-use employment parks." The same policy provides that they must have a usable area of 10 acres or more, have a service-area radius of 20 miles or more, be supported by a population of 150,000 or more people, and have a gross leasable area of 500,000 to 2,000,000 square feet. Given this description of their purpose and characteristics, and the wide range of commercial activities that are allowed on Business-Park Center lands, it is not surprising that Policy 2.113-B-3 provides that BPC lands should be located "at the intersections of arterial roads, and preferably on a fixed-route mass-transit line," while Policy 2.113-B-4 requires that they "have direct frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves on an arterial roadway." When reading these provisions as a whole, it is unreasonable to conclude, as the County does, that "direct access" contemplates a drive of over 4 miles, partly on a narrow two- lane road, in order to reach an arterial road. Accordingly, on this issue, Petitioners' evidence is the most persuasive, and it is found that the plan amendment conflicts with Policy 2.113-B-4 and in this respect is internally inconsistent with the Plan. Policy 2.110-C3 sets forth the following location criteria for Convenience Centers: LOCATION CRITERIA Convenience Centers shall be located at the intersections of arterial and/or collector roads. There shall be the following traveling distance, on public roads, between the center of Convenience Center and the center of any other Convenience Center, or other higher- level Activity Center, Linear Commercial Corridor, or Commercial Enclave providing for the same convenience shopping needs: One (1) mile within the UDA and UGA Two (2) miles within the SDA and UEA This required separation may be reduced if: The higher-level Activity Center, Linear Commercial Corridor or Commercial Enclave within the required distance separation is over 80 percent developed; or the proposed Convenience Center market- area radius, minimum population support is over 5,000 people. Petitioners contend that this policy has been violated in two respects: the Berry property is not located at the intersection of arterial roads; and there is an existing convenience center located within 0.8 mile of the Barry property, and Berry cannot qualify for a reduction in the required separation, as described in paragraphs a and b. For the reasons stated in Findings of Fact 30-32, it is found that the Berry property is located at the intersection of two collector roads (Eagle Lake Loop Road and Eloise Loop Road) and that a T intersection satisfies the requirements of the policy. As to the second contention, the Berry property is located within an UGA (Urban Growth Area), and an existing convenience store is located at the intersection of Rifle Range Road and Eagle Lake Loop Road, or less than a mile west of Berry's property. The land use on the property on which the store sits was recently changed (in December 2003) to BPC, which does not allow a convenience store. However, the store is a non-conforming use, having been located at that site before the Plan was adopted. The locational requirement in Policy 2.110-C-3 that CC lands within the UGA be located at least a mile apart is not the least bit vague or ambiguous: CC designated lands (and not individual convenience stores, as Petitioners suggest) must be separated by at least a mile, unless one of the two criteria for reducing this separation is met. Because there is no CC land within a one-mile radius of the Berry land, the policy has not been violated. Policy 2.113-B-1 sets forth the following relevant characteristic for Business-Park Centers: General characteristics of Business-Park Centers are: Usable Area 10 acres or more There is no dispute that the useable area for the BPC land is only 6.06 acres, or approximately 60 percent of the required acreage. Petitioners contend that the amendment violates the foregoing policy because the useable area on Barry's property is much less than "10 acres or more." While the former County Planning Director conceded that the 10-acre usable area requirement is "mandatory," he justified the amendment on the ground that the 6.06 acres "approximates" 10 acres, and thus satisfies the policy. In the same vein, the current County Planning Director asserted that if Berry was proposing a stand-alone BPC, it would have been required to have 10 usable acres. In this case, though, he pointed out that the Berry property will be used for a nonresidential mixed use (BPC and CC) totaling almost 10 acres, and therefore Berry has satisfied the requirement. The Planning Director admitted, however, that nothing in the Plan specifically allows this type of exception. He justified the County's action on the theory that the Plan "doesn't anticipate every situation that comes in," and "interpretations have to be made of the comprehensive plan and how it's applied." The requirement that Business-Park Centers have a usable area of 10 or more acres is clear and unambiguous, was characterized as being "mandatory," and is not subject to any exceptions in the Plan. This being so, the County's interpretation is found to be unreasonable and contrary to the plain language in the policy, and in this respect the plan amendment is internally inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment (CPA2003S-02) adopted by Polk County by Ordinance No. 03-03, as amended by Ordinance No. 03-19, is not in compliance. DONE AND ENTERED this 24th day of February, 2004, 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 24th day of February, 2004.
The Issue The issues to be considered here concern whether Comprehensive Plan Amendment #92-3, adopted by Ocala on June 23, 1992, by Ordinance No. 2254 is "in compliance" with requirements of law as that term is defined in Section 163.3184(1)(b), Florida Statutes. In particular the determination on compliance is limited to an analysis of Paddock Park's stated reasons for finding the plan amendment "not in compliance." In summary those allegations are as follows: The Future Land Use Map (FLUM) amendment is inconsistent with provisions of Section 163.3177(3)(a), Florida Statutes and Rule 9J-5.006, Florida Administrative Code, for the reasons specified in Sections I.A.1.(a)(b) and (d) of the DCA's May 1, 1992 objections, recommendations and comments (ORC). The FLUM amendment is inconsistent with the provisions of Section 163.3177(6)(b), Florida Statutes and Rule 9J-5.007, Florida Administrative Code for the reasons speci- fied in Section I.A.2.(a) of the ORC, and by reason of an erroneous assumption that 80 percent of the traffic generated on the 39.44 acre parcel which is at issue would impact State Road 200 rather than S.W. 42nd Street, resulting in a material miscalcula- tion of the impact on the latter roadway by the proposed reclassification contem- plated by the FLUM amendment. The FLUM amendment is inconsistent with both Potable Water and Sanitary Sewer sub- elements and is inconsistent with the provi- sions of the Capital Improvement Element of the Ocala Comprehensive Plan, in that the reclassification results in estimates of potable water and sanitary sewer usage in excess of that contemplated by Ocala's Water and Waste-water Master Plan for which no provision is made in the Capital Improvement Element of the Comprehensive Plan. The FLUM amendment is inconsistent with Objectives 1 and 2 and Policy 3.3 of the Inter-governmental Coordination Element of the Ocala Comprehensive Plan in that the FLUM amendment was made without notification or opportunity for input from Marion County as it influences the impact of the land use reclassification on the level of service on S.W. 42nd Street, a roadway alleged to be under the jurisdiction of Marion County or upon the land use classifications of property lying immediately east and west of the 39.44 acre parcel at issue and the entire area lying south of S.W. 42nd Street, which latter parcel lies within the jurisdiction of Marion County.
Findings Of Fact The Parties Paddock Park is a Florida corporation. It has its principal place of business in Ocala, Florida. It is the developer of Paddock Park, a Development of Regional Impact (DRI). Part of the DRI lies immediately north and east of the parcel of land which is the subject of the dispute. Paddock Park by submitting oral and written comments during the review and adoption proceedings associated with the subject Comprehensive Plan Amendment established itself as an affected person. DCA is the state land planning agency which has the responsibility for reviewing comprehensive plans and amendments to those plans in accordance with Chapter 163, Part II, Florida Statutes. Ocala is a local government in Florida. It is required to adopt a comprehensive plan consistent with Chapter 163, Part II, Florida Statutes, and the State and Regional Plans. Any amendments, such as the present amendment at issue, must also comply with Chapter 163, Part II, Florida Statutes, and the State and Local Plans. Ocala is located in the south central part of Marion County, Florida. It is the largest urban area in the county. It is comprised of approximately 18,820 acres of land area. In 1990 Ocala had an estimated population of 45,130 with a projected increase of population to 73,309 persons by the year 2015. Comprehensive Plan Amendment: Description, Preparation, Adoption and Review Ocala submitted its Comprehensive Plan to DCA on October 30, 1991. On December 14, 1991, DCA published a notice determining that the plan was "in compliance" with legal requirements. On January 24, 1992, Ocala submitted proposed Comprehensive Plan Amendment #92-1 to DCA for ORC review. The overall purpose of that amendment was to incorporate annexed property into Ocala's existing plan. One of those parcels is the subject of this dispute. The proposed Comprehensive Plan Amendment #92-1 included six FLUM changes. Each of those changes was addressed by separate ordinance. The FLUM change which is specifically at issue in this case was described as Comprehensive Plan Amendment #92-3. It is a parcel of approximately 59 acres in size. Within that parcel Ocala has classified 20.15 acres for retail services land use and 39.44 acres for professional services land use. The overall 59 acre parcel described in the proposal is located 200 feet south of State Road 200. That roadway is a principal arterial roadway. The 59 acre parcel extends southward to S.W. 42nd Street. The latter roadway is a collector roadway which is maintained and operated by Marion County in the immediate vicinity of this parcel. The collector roadway terminates at I-75, an interstate highway to the west and first intersects S.W. 27 Avenue a roadway within the Ocala corporate limits to the east. The ownership of the 59 acres is held by different property owners. The southern most parcel, "Tri-Star Parcel", is the 39.44 acres bordered by S.W. 42nd Street. At all relevant times that parcel has been undeveloped. The northernmost parcel, "Pearson Parcel", is 20.15 acres in size and it is partially developed with a now defunct mobile home park in the northern reaches of that property. The overall 59 acres is surrounded by other parcels within Ocala, excepting parcels basically to the south which are within unincorporated Marion County. Surrounding properties to the north of the 59 acres are designated for retail services that include a real estate office, a gas station and a bank. To the west, property is designated for retail services and includes the Hilton Hotel complex. To the east parcels are designated for professional services as well as retail services, to include a regional shopping mall, offices and a multi-family residential development of approximately 400 units. The Paddock Park property described before is located in this area and offers professional services land use. Preliminary to the submission of proposed Comprehensive Plan Amendment #92-3, the Ocala Planning Department had considered the designation of land uses for the 20.15 acres and 39.44 acres. The Ocala Planning and Zoning Commission as the local planning agency reviewed the proposed land use designation by the Ocala Planning Department. The land planning agency then made a recommendation to the Ocala City Council, the governing body, concerning the appropriate land use for the two parcels. The Ocala City Council made its initial determination on the designation of the 39.44 acre parcel at a transmittal hearing held on January 4, 1992. It was at that juncture that the designation of the 39.44 acres as professional services was initially addressed by the Ocala City Council. Ocala then submitted the proposed amendment for DCA review and comment. On May 1, 1992, DCA responded to the proposed Comprehensive Plan Amendment #92-3, together with the other proposed Comprehensive Plan Amendments under consideration by issuing an ORC report. On June 18, 1992, the Ocala City Council held a workshop to consider the ORC report directed to the proposed Comprehensive Plan Amendments. Ocala also filed a written response to the ORC report. On June 23, 1992, the Ocala City Council held a public hearing to consider adoption of Comprehensive Plan Amendment #92-3 together with other council business. Paddock Park was represented at that hearing by an attorney, counsel in the present action. At the public hearing counsel made known Paddock Park's opposition to designating the 39.44 acres, "Tri-Star Parcel", as professional services land use. In particular counsel questioned the assumption that 80 percent of the traffic generated by activities on the 39.44 acres would be routed to State Road 200, in that there was no existing access to State Road 200 from that parcel. Instead counsel stated his belief, in behalf of his client, that the access from the 39.44 acres parcel would be to S.W. 42nd Street. Counsel made mention that S.W. 42nd Street had a capacity as a collector roadway of about 12,500 trips for level of service "E". Counsel stated that he anticipated this parcel would generate 10,267 trips leaving only approximately 1,900 trips available on S.W. 42nd Street for any development which Paddock Park wished to undertake and for the development of Red Oak Farms and Ocala Stud Farm properties which lie to the south of S.W. 42nd Street. Counsel mentioned that the property south of S.W. 42nd Street carried a low density residential designation. Mention was made by counsel that a large amount of professional services land use contemplated for development of the 39.44 acres would effectively destroy Paddock Park's ability to develop by overloading S.W. 42nd Street. Counsel for Paddock Park requested the Ocala City Council to leave the land use designation for the 39.44 acres as agricultural or change it to some form of low density residential as opposed to professional services land use. Other discussions were held between counsel and the Ocala City Council concerning the implications of designating the 39.44 acres as professional services land use. A motion was made at the June 23, 1992 meeting to adopt City of Ocala Ordinance No. 2254 which dealt with the subject of the 20.15 acres and 39.44 acres which had been described in proposed Comprehensive Plan Amendment #92-3. That motion gained a second. A vote on the motion was delayed while further discussion was made concerning the 39.44 acres. In this interval an attempt was made by one councilman to amend the motion to adopt by changing the 39.44 acres from professional services to medium density residential. That attempt at amendment died for lack of a second. The Ocala City Council then voted to adopt City of Ocala Ordinance No. 2254. This constituted the adoption of amendments to the Ocala Comprehensive Plan which was received on August 7, 1992, reviewed by DCA and found to be "in compliance" by notice given by DCA on September 18, 1992. Included within that series of amendments was adopted Comprehensive Plan Amendment #92-3 dealing with the 39.44 acre parcel as professional services land use. In addition to the oral remarks by counsel made during the June 23, 1992 public hearing concerning adoption of the subject amendment to the Comprehensive Plan, counsel filed written objections on that same date. As basis for those objections counsel incorporated some objections to the proposed Comprehensive Plan Amendment #92-3 as stated in the ORC report, specifically the objection that Ocala had failed to demonstrate the need for an additional 40 acres of professional land services use to accommodate the projected population. Other reasons for objecting set forth in the correspondence included objection based upon the belief that a medium density residential designation of Paddock Park property to the east and low density residential use assigned by Marion County to the south were inconsistent with professional services designation of the 39.44 acres. Written comment was also made concerning the expected overtaxing of S.W. 42nd Street. Other than the data and analysis in support of the proposed Comprehensive Plan Amendment #92-3, the ORC report which addressed the data and analysis contemplated by the proposed Comprehensive Plan Amendment #92-3 and the oral and written remarks by counsel for Paddock Park, the Ocala City Council had no other basis for understanding the possible impacts of the traffic generated by activities on the 39.44 acres under professional services land use classification as they would pertain to S.W. 42nd Street and other roadways that would be impacted by that development. The change contemplated by the proposed Comprehensive Plan Amendment #92-3 and the adopted Comprehensive Plan Amendment related to those parcels was from a current zoning of B-2 (community business) related to the 20.15 acres to retail services and from A-1 (agricultural) for the 39.44 acres to professional services. The adopted Ocala Comprehensive Plan Amendment 92-3 changed the data and analysis from what was submitted with the proposed plan amendment concerning the anticipated impacts on roadways brought about by designating the 39.44 acre parcel as professional services land use. As stated, those differences were not known to the Ocala City Council when it adopted the subject Comprehensive Plan Amendment on June 23, 1992. Nonetheless, the data had been available prior to the June 23, 1992 adoption hearing or available sufficiently contemporaneous to that date to be proper data for determining the land use classification impacts on affected roadways. The data was professionally obtained and analyzed as submitted to DCA with the adopted Comprehensive Plan Amendment #92-3. Similar explanations pertain to the demands on potable water and sanitary sewer services for the parcels described in Comprehensive Plan Amendment #92-3. The procedures used by Ocala and the DCA in addressing the adopted Comprehensive Plan Amendment #92-3 on the subject of impacts to roadways and potable water and sanitary sewer services were not irregular when considering the underlying data and analysis that was prepared by Ocala, submitted to the DCA and approved by the DCA in finding the Comprehensive Plan Amendment #92-3 "in compliance". When DCA received the proposed Comprehensive Plan Amendment #92-3 it disseminated that information to Marion County to include the associated data and analysis accompanying that proposal. Marion County did not respond to the opportunity to comment on the proposed Comprehensive Plan Amendment #92-3 for the benefit of DCA in preparing the ORC report and in keeping with Marion County's statutory duty to consider Comprehensive Plan Amendment #92-3 in the context of the relationship and affect of that amendment on any Marion County comprehensive plan element. Marion County did not communicate the results of any review conducted concerning compatibility of the proposed Comprehensive Plan Amendment #92-3 with Marion County Comprehensive Plan Elements. No specific information concerning Comprehensive Plan Amendment #92-3 in its proposed form or in its adopted form was provided from Ocala to Marion County. Nor was any other contact made by Ocala with Marion County concerning Comprehensive Plan Amendment #92-3. The record does not reflect any attempt being made to discourage Marion County from offering comments concerning Comprehensive Plan Amendment #92-3. At the time that the Ocala City Council considered the plan amendment adoption on June 23, 1992, to designate the 39.44 acres as medium density residential would have promoted an over-allocation of that land use classification by 70 percent, whereas in classifying the property as professional services Ocala increased the percentage of professional services land use allocation from 93 percent to slightly in excess of 100 percent within the Ocala corporate limits. These facts together with the compatibility between a professional services land use designation and the uses for nearby parcels roughly north, east and west of the subject property supports classifying the 39.44 acres as professional services land use. In addition to the concern for proper allocation of land uses, Ocala recognized that the professional services land use classification would allow citizens other than those who resided in Ocala to be served. Notwithstanding the nature of some existing low density residential and agricultural land uses in the vicinity of the 39.44 acres designated by the amendment for professional services land use, especially property roughly to the south of that 39.44 acres across S.W. 42nd Street in Marion County, it was not inappropriate to designate the subject 39.44 acres as professional services land use. Paddock Park did not prove to the exclusion of fair debate that the designation of the parcel as professional services land use was a decision not in compliance with applicable statutes and rules. Allegation One The objections offered by DCA to proposed Comprehensive Plan Amendment #92-3 which are described in the first allegation to the petition by Paddock Park states: The above-cited proposed Future Land Use amendments are not based on data and analysis as cited below: Existing land use map depicting the existing generalized land uses of the subject properties, the generalized land uses of land adjacent to the amended boundaries of the City, and the boundaries to the subject pro- perties and their location in relation to the surrounding street and thoroughfare network is not included; The appropriate acreage in the general range of density and intensity of use for the existing land use of the subject pro- perties are not included; * * * (d) An analysis of the amount of land needed to accommodate the projected population, in- cluding the categories of land use and their densities and intensities of use, the esti- mated gross acreage needed by category and a description of the methodology used in order to justify the land uses assigned to the sub- ject properties. The basis on which land uses are assigned to the subject properties is not included in the documentation suppor- ting the amendment. To meet the criticisms offered by DCA in its ORC report, thereby avoiding any violation of Section 163.3177(3)(a), Florida Statutes and Rule 9J- 5.006(1)(2), Florida Administrative Code, DCA made these recommendations: Include an existing land use map depic- ting the existing generalized land uses of the subject properties, the generalized land uses of land adjacent to the amended bound- aries of the City, and the boundaries of the subject properties and their location in relation to the surrounding street or thoroughfare network. Expand the data and analysis supporting the proposed amendments to identify in tab- ular form the approximate acreage and the general range of density and intensity of existing land uses of the subject properties. In addition, the existing land use data tables in the Comprehensive Plan should be updated to reflect these annexed parcels. * * * (d) Include an analysis of the amount of land needed to accommodate the projected population, identifying the categories of land use and their densities and intensities of use, the estimated gross acreage needed by category and the methodology used in order to justify the land uses assigned to the sub- ject properties. The City should also take into consideration any existing over-alloca- tion of land uses. The over-allocation of land for any use should be reasonably related to the projected growth needs and allow for a certain amount of flexibility in the market place. When the adopted Comprehensive Plan Amendment #92-3 was submitted to DCA for compliance determination it included maps that depicted the existing land uses of the annexed areas, the existing land uses of parcels adjacent to the annexed areas and identification of surrounding street networks. The maps attached to the adopted Comprehensive Plan Amendment #92-3 generally address the requirements of Section 163.3177(3)(a), Florida Statutes and Rule 9J- 5.006(1)(a), Florida Administrative Code. This information together with preexisting knowledge by DCA satisfied its concerns in this area of criticism and led to the favorable response to Comprehensive Plan Amendment #92-3. In addition Ocala, in the adopted Comprehensive Plan Amendment #92-3, provided revised background information which served as data and analysis to support the adopted Comprehensive Plan Amendment #92-3. This information was to the following affect: BACKGROUND: The parcel designated for a Retail Service land use was once developed as a mobile home park. Though not part of the annexation, that parcel includes access to S.R. 200. Other considerations justifying the land use designations include: the lack of environmental constraints - the site is on previously developed land; the compatibility with surrounding properties, contributing to infill development along an established comm- ercial corridor which has been designated in the Comprehensive Plan as an activity center in which development should be promoted; the access to a major arterial roadway with excess capacity able to accommodate the land use; and the availability of adequate water and sewer. The rear parcel is appropriate for develop- ment in a Professional Services land use, which would be compatible with the surround- ing land uses. The amendment adds 20.15 acres to the comm- ercial acreage of the City, changing the over- allocation in the Retail Services sub-cate- gory from 133 percent to 135 percent (See Table 1). Adding additional acreage in the commercial land use category is justified in this instance since retail uses, particu- larly in this area, serve not only the exist- ing and future city residents but also non- incorporated county residents as well as residents of neighboring counties [objection 1.b.] The second parcel adds 39.44 acres to the Professional Services sub-category, changing the percentage from 93 percent to 101.5 percent for this sub-category of comm- ercial land uses (See Table 1). Adding add- itional acreage in the commercial land use category is justified due to the current under-allocation of Professional Services land use acreage, and due to the probability that the proposed that the proposed office uses will serve a larger population than just City residents. [objection 1.b] With the submission of the adopted Comprehensive Plan Amendment #92-3 Ocala included Table 1 that identified projected and existing allocations of acreage pertaining to need due to population increases and the anticipated impacts of this Comprehensive Plan Amendment on percentages of allocation of land use for the year 2002. Concerning Allegation One, Paddock Park has failed to show to the exclusion of fair debate that the adopted Comprehensive Plan Amendment #92-3 is not "in compliance" with applicable statutes and rules. Allegation Two In its objections to proposed Comprehensive Plan Amendment #92-3 DCA stated: The traffic circulation analysis for the above-cited proposed Future Land Use Map amendments are incomplete because of the following reasons: The analyses do not address all the road- ways that will be impacted by the development of the subject properties. In most cases, the analyses only address the roadways that provide direct access to these properties. DCA recommended: Revise the traffic circulation analyses from the above-cited FLUM amendments to address the following: All roadways that will be impacted by the development of the subject properties. In the statement concerning the data and analysis associated with the roadways set out in the adopted Comprehensive Plan Amendment #92-3 Ocala stated the following: ROADWAYS: Development of The annexed area has an impact on S.R. 200, a 6-lane state roadway classified as a principle arterial, on S.W. 27th Ave., a 4-lane minor arterial, on S.W. 42nd St., a 2-lane roadway classified as a local street. S.R. 200 was operating in 1990 at LOS D with 30,932 trips (using the most recent traffic counts available). Capa- city at adopted LOS D is 46,300 trips. Traffic counts are not available for 42nd St., but the total capacity for local street generally is 12, 100 trips per day. Capacity on S.W. 42nd St. may be less. The affected segment of S.R. 200 is expected to remain at LOS D by 1997, with 35,363 trips (Ocala Comp- rehensive Plan.) Splitting the area with a Retail Services land use in the north part and with a Profe- ssional Services and use replacing the exist- ing A-1 zoned area in the south, the 20.15 acres of commercial land use in the north parcel could generate 239,445 193,979 GLA square footage (based on 31 percent building coverage, the maximum possible due parking requirements) which could generate 12,19710, 693 trips on S.R. 200 (assuming 100 percent use and no passer-by or diverted trips). [Objection 2(b)] Subtracting 30 percent trips for passer by traffic which would be on the road in any case results in a predicted increase of 7,485 trips due to the commercial development and a total of 38,417 trips and LOS D. The addition of 12, 197 trips would not decrease the LOS of S.R. 200 below the adopted LOS of D on the frontage segment, and would not decrease the LOS be- low C on the other impacted segments. South- west 27th Ave. would not change from its existing LOS of A. [Objection 2(b)] In any case, the addition of this many additi- onal trips due to retain development is un- likely due to the large number of existing retail uses on S.R. 200. In other words, it is unlikely that any new retail develop- ment would attract a large number of people who don't currently use the roadway. Impact from development of the 39.44 acre south part in a Professional Services land is difficult to assess, due to a lack of data on mixed use developments (ITE Trip Generation, 5th Edition). Analyzing the 39.44 acre south parcel, and Using the trip estimates for an office park development in the ITE manual and splitting the traffic with 80 percent on S.R. 200 and 20 percent on S.W. 42nd St., an estimated additional 6,024 8,280 trips would result on S.R. 200 at full development. Due to the lack of traffic counts on S.W. 42nd St., the impact on the adopted LOS of E of an additional 6,024 trips is difficult to assess. However, a windshield survey indicates current traffic volumes on S.W. 42nd St. is far less than the 6,086 trips that would be necessary, with the addition of the estimated 6,024 from full development in a Professional Services land use, to degrade the adopted LOS, Adding 7,845 trips from the commercial development results in a possible 16125 added trips on S.R. 200 from full development on the annexed area in this land use, which would result in 47,057 total trips when added to the 1990 traffic count of 30,932 and degrade the aff- ected segment of S.R. 200 below LOS D (Total trips can not fall below 46,300. Trips on 42nd St. would increase by 1,987 total trips. Using the trip estimates for a business park development, rather than for an office park development as above, results in 5,924 trips from the proposed Professional Services land use area. Adding the 4,739 (80 percent of 5,924) trips to the 7,845 Retail Services land use esti- mated trips results in 12,584 estimated add- itional trips on S.R. 200, for a total of 43,516 which would keep the roadway segment at LOS D (46,300 maximum). To summarize, development on either parcel is not expected to degrade the LOS on the affected roadways below adopted levels of service. In any case, the concurrency system would not allow a development to be permitted which causes the roadway to degrade below the adopted LOS standard. Through the data and analysis submitted with the adopted Comprehensive Plan Amendment #92-3, Ocala has spoken to the impacts on collector and arterial roads and sufficiently concluded that the levels of service on those roads will not be lowered by the projected development impacts. Paddock Park's attempt to prove that other roadways such as S.W. 41st Street, S.W. 42nd Avenue, S.W. 33rd Avenue and S.W. 27th Avenue should have been included with the data and analysis and to prove more generally that the traffic impact data and analysis submitted by Ocala was insufficient did not demonstrate to the exclusion of fair debate that the supporting data and analysis submitted with the adopted Comprehensive Plan Amendment #92-3 was inadequate. Furthermore, development may not take place that compromises the level of service on roadways because of the protections afforded by the requirement for concurrent facilities to be provided. While Ocala determined that its original assumption concerning the traffic division for 80 percent to State Road 200 and 20 percent to S.W. 42nd Street projection for traffic generation was erroneous, this miscalculation did not preclude Ocala from further analysis concerning the impacts to roadways which has been previously described. Nor was Ocala prohibited from further considering the development pattern within the overall professional services land use classification expected to transpire within the 39.44 acre parcel, in particular as it pertains to automobile traffic generation. Finally, Ocala was entitled to correct any mathematical errors in calculations performed in the proposed Comprehensive Plan Amendment #92-3 when submitting the data and analysis concerning impacts to roadways which accompanied the adopted Comprehensive Plan Amendment #92-3 sent to DCA for review and compliance determination. As described, the data and analysis performed in submitting the adopted Comprehensive Plan Amendment #92-3 need not have been available to the Ocala City Council when it voted to approve to adopt the subject Comprehensive Plan Amendment on June 23, 1992. Given that the opportunity was presented to change the assessment concerning impacts to the roadways from the point in time in which the proposed Comprehensive Plan Amendment #92-3 was submitted until the place at which the adopted Comprehensive Plan Amendment #92-3 with associated data and analysis was transmitted for review and compliance determination, and upon the basis that the data and analysis performed to support the adopted Comprehensive Plan Amendment #92-3 has not been shown to be inadequate when considered to the exclusion of fair debate, Ocala's willingness to correct perceived errors in its assumptions associated with the data and analysis submitted with the proposed Comprehensive Plan Amendment #92-3 is condoned by this process and acceptable. Allegation Three As with the discussion concerning the roadways, it is the data and analysis performed to support the adopted Comprehensive Plan Amendment #92-3 which pertains. It states: POTABLE WATER: The area is served by City water. The area is within 1/4 mile of exist- ing water lines and would have to connect upon development. Development as above could generate 43 gpm (1,055 gallons per acres per day X 17.8 acres) with all non-resi- dential uses and 29.7 gpm with a mix of retail and residential uses of the property. New distribution pipes and treatment facil- ities would not be required. since S.R. 200 is already served by a 16" main and the in- creased water demand represents at most .0619 mgd, or 1.2 percent of the projected avail- able potable water capacity in 1997. [Objec- tion 3] Costs related to development using water plant capacity would be offset by the hook-up fees charges when new developments connect to water and sewer. SANITARY SEWER: The area is served by City sanitary sewer. The area is within 1/8th of a mile of existing service and would have to connect to the City sewer system upon deve- lopment Using the 51.7 percent ratio of water to wastewater flows contained in the Comprehensive Plan, flows of 22.2 gpm nd 15.3 gpm, average flow, and 88.8 gpm and 61.2 gpm peak flow, respectively, could be expected which represent .032 mgd or 1.2 per- cent of the projected available sewer plant capacity in 1997. [Objection 3] Through this data and analysis it has been established that there is adequate sewer and potable water capacity to service the development of the Tri- Star Parcel. Paddock Park has failed to prove to the exclusion of fair debate that the Potable Water and Sanitary Sewer Elements within the adopted Comprehensive Plan Amendment #92-3 are inconsistent with applicable statutes and rules and the Potable Water and Sanitary Sewer Elements and the Capital Improvement Element to the overall Ocala Comprehensive Plan, the controlling requirements when considering the amendment's acceptability. Allegation Four Within the Ocala Comprehensive Plan within the Inter-governmental Coordination Element, Objective one states: The City of Ocala shall maintain applicable level of service standards with the entity having operational or maintenance responsi- bility for the facility. The review and coordination of level of service standards will begin as of May, 1992, or at the adop- tion of the concerns of City management system, which ever occurs first, and will be a continuing process. Objective Two states: The City of Ocala shall coordinate its Compre- hensive Plan with that of the long-range objectives of Marion County and the Marion County School Board. The coordination mechan- ism between the City and the County shall con- sist of plan amendments and additional plan elements. Policy 3.3 in the Ocala Comprehensive Plan Inter-governmental Coordination Element states: The City of Ocala will continue to provide means of notification, review and input, in writing, regarding proposed development and zoning changes between itself and Marion County. It shall be the responsibility of City officials. In adopting Comprehensive Plan Amendment #92-3 Ocala has not interfered with the applicable levels of service standards pertaining to operational or maintenance responsibility for any facility over which Marion County or the City of Ocala have responsibility. By virtue of the provision of the proposed Comprehensive Plan Amendment #92-3 to Marion County through DCA, Ocala has met Objective Two and Policy 3.3 to the Inter-governmental Coordination Element within the Ocala Comprehensive Plan.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds the adopted Comprehensive Plan Amendment #92-3 to be "in compliance" and dismisses the petition by Paddock Park. DONE and ENTERED this 19th day of August, 1993, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6257GM The following discussion is given concerning the proposed findings of fact submitted by the parties: Paddock Park's Facts: Paragraphs 1 and 2 are not necessary to the resolution of the dispute. Paragraph 3 in its first two sentences are subordinate to facts found. The remaining sentences in that paragraph are not necessary to the resolution of the dispute. Paragraphs 4 and 5 are not necessary to the resolution of the dispute. Paragraphs 6 through 9 are subordinate to facts found. Paragraph 10 is contrary to facts found in its suggestion that the decision to classify the parcel in question as professional services was inappropriate or that the data and analysis addressing impacts to roadways made at the time the adopted Comprehensive Plan Amendment #92-3 was submitted was inadequate. Otherwise Paragraph 10 is subordinate to facts found. Paragraph 11 is subordinate to facts found. Paragraph 12 is subordinate to facts found with the exception of its suggestion that the adopted Comprehensive Plan Amendment #92-3 failed to adequately address land uses of properties adjacent to the 39.44 acre parcel, to include location of roadways. Paragraph 13 is subordinate to facts found with the exception of the third objective is not relevant to the inquiry in that it was not identified as an allegation in the petition as amended at hearing. Paragraph 14, while no specific attempt was made to coordinate and review the impact of the adopted Comprehen-sive Plan Amendment #92-3 as it impacted levels of service on S.W. 42nd Street and Southwest 27th Avenue through discussions with Marion County, Paddock Park did not show that the activities envisioned by adopted Comprehensive Plan Amendment #92-3 would inappropriately influence the operational and maintenance responsibility concerning those facilities. Paragraphs 15 and 16 constitute conclusions of law. Paragraph 17 is contrary to facts found to the extent that it asserts inadequate identification of land uses and roadways in the adopted Comprehensive Plan. Ocala's Facts: Paragraphs 1-3 are subordinate to facts found Paragraphs 4-6 constitute legal argument. Paragraphs 7-17 are subordinate to facts found. Paragraphs 18 through 20 constitute legal argument. Paragraph 21 is not necessary to the resolution of the dispute. Paragraphs 22 through 32 are subordinate to facts found. Paragraphs 33 through 37 are not necessary to the resolution of the dispute. Paragraphs 38 through 46 are subordinate to facts found. Paragraphs 47 and 48 are not necessary to the resolution of the dispute. Paragraphs 49 through 54 are subordinate to facts found. Paragraphs 55 through 59 are not necessary to the resolution of the dispute. Paragraphs 60 through 65 are subordinate to facts found. Paragraph 66 is not necessary to the resolution of the dispute. Paragraph 67 through 70 are subordinate to facts found. Paragraph 71 is rejected as contrary. Paragraph 71 is not factually correct. Paragraphs 72-74 are subordinate to facts found. Paragraphs 75 through 77 are not necessary to the resolution of the dispute. Paragraph 78 is subordinate to facts found. Paragraph 79 is not necessary to the resolution of the dispute. Paragraphs 80 through 82 is subordinate to facts found. Paragraph 83 is rejected to the extent that it suggests that it was necessary for Paddock Park to offer remarks about potable water and sanitary sewer at the June 23, 1992 public hearing. Paragraph 84 is not necessary to the resolution of the dispute. Paragraphs 85 through 88 are subordinate to facts found. Paragraphs 89 through 98 are not necessary to the resolution of the dispute. DCA's Facts: Paragraphs 1 through the first sentence in Paragraph 14 are subordinate to facts found. The second sentence in that paragraph is not necessary to the resolution of the dispute. The remaining sentences in Paragraph 14 are subordinate to facts found. Paragraphs 15 through 19 are subordinate to facts found. Paragraphs 20 and 21 are not necessary to the resolution of the dispute. Paragraphs 22 through 24 are subordinate to facts found. Paragraphs 25 through 27 are not necessary to the resolution of the dispute. Paragraphs 28 through 33 are subordinate to facts found. Paragraph 34 is not necessary to the resolution of the dispute. Paragraph 35 constitutes legal argument. Paragraphs 36 and 37 are subordinate to facts found. Paragraphs 38 through 40 are not necessary to the resolution of the dispute. Paragraphs 41 and 42 are subordinate to facts found. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 John P. McKeever, Esquire McKeever Pattillo and McKeever Post Office Box 1450 Ocala, Florida 34478 Patrick G. Gilligan, Esquire 7 East Silver Springs Boulevard Concord Square, Suite 405 Ocala, Florida 34474 Ann Melinda Parker, Esquire Bond Arnette and Phelan, P.A. Post Office Box 2405 Ocala, Florida 34478 Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact Sarasota County's Comprehensive Plan Amendment RU-5 was adopted, as Sarasota County Ordinance No. 91-41, on July 3, 1991. RU-5 amends the 1989 "Revised and Updated Sarasota County Comprehensive Plan," which is also known as "Apoxsee." Res Judicata and Collateral Estoppel.-- The 1989 plan, Apoxsee, is the subject of the Final Order, Hiss v. Sarasota County, ACC 90-014, DOAH Case No. 89-3380GM (the Hiss Final Order). The Hiss Final Order resulted from the Section 163.3184(9) formal administrative proceeding Hiss initiated after notice by the Department of Community Affairs (the DCA) of its determination that the adopted Sarasota County comprehensive plan was "in compliance." After a final hearing, a Division of Administrative Hearings hearing officer entered a Recommended Order on August 14, 1990, recommending that, for certain specified reasons, the plan be found to be not "in compliance." After consideration of the Recommended Order and exceptions to it filed by Hiss, by the County and by the intervenors, the DCA determined that the plan was not in compliance, concluded that, with the exception of the remedial actions recommended by the hearing officer, the Recommended Order should be adopted. The DCA submitted the Recommended Order to the Administration Commission for final agency action (the Hiss Final Order), which was taken on June 4, 1991. The Hiss Final Order recited in part 4/: PRELIMINARY STATEMENT * * * The Recommended Order divides Hiss' numerous allegations for the plan's noncompliance into four categories: the first alleging adoption in a manner inconsistent with the minimum criteria regarding public participation, the second involving the Recreation and Open Spaces Element, the third involving the Future Land Use Element and Future Land Use Map, and the fourth involving urban sprawl. The Hearing Officer concluded that the plan was in compliance with regard to the first, second and fourth of these categories. But, with regard to the third category, the Future Land Use Element and Future Land Use Map, the Hearing Officer concluded that the plan was not in compliance for a number of reasons. * * * ACTION ON THE RECOMMENDED ORDER Pursuant to Section 120.57(1)(b)10., Florida Statutes, the Commission accepts the Findings of Fact and the Conclusions of Law contained in the Recommended Order . . . with the exception of the recommended Remedial Action to the extent inconsistent with the Remedial Action ordered below. The Sarasota County comprehensive plan, therefore, is determined to be not in compliance for the reasons set forth in the Recommended Order and the following remedial action is ordered. REMEDIAL ACTION The following remedial action pursuant to the schedule in paragraph 15, below, is hereby ordered to bring the comprehensive plan of Sarasota County into compliance: * * * a. Plan amendments ordered herein shall be prepared by the County and transmitted to the Department of Community Affairs by September 30, 1991. DCA by October 15, 1991 shall certify to the Commission that the plan amendments have been received. In the event the plan amendments are not received by that date the DCA shall notify the Commission by October 31, 1991 and the Commission shall review the matter as to the appropriate action to be taken. DCA shall report to the Commission on the progress of its review of the plan amendments by February 15, 1992. DCA shall forward a recommendation to the Commission regarding the County's conformance with the remedial action ordered herein no later than June 1, 1992. SANCTIONS Under the circumstances of this case, the Commission exercises its discretion to impose no sanctions on the County at this time. The Commission retains jurisdiction, however, to consider sanctions available under Chapter 163, Florida Statutes, and to impose sanctions in the future if the County fails to comply with the remedial actions of this order. Paragraph 10 of the "Remedial Actions" portion of the Final Order, which required the County to amend Policy 1.1.2 and add or amend other appropriate objectives and policies in the Public Facilities Plan as described therein, contained the following footnote: "Clarifica- tion of the language in the amendments ordered by Remedial Action 10, so long as they do not depart from the purposes of the remedial actions ordered, may be made by the County subject to review and compliance determinations by the Department of Community Affairs and this Commission." The Walton Tract. The Walton Tract is approximately 6,151 acres of land in south central Sarasota County. It is about a mile east of Interstate 75 and is presently undeveloped with vegetation typical of the pine flatwood community. At the time Apoxsee was adopted, the County was in the process of planning for a solid waste disposal complex on the Walton Tract but had not yet identified an exact landfill site on the tract. In Apoxsee, the entire Walton Tract was identifed as the general area for the proposed Central County Solid Waste Disposal Complex, and the entire Walton Tract was designated as "Public Resource Lands." Prior Proceeding.-- In part, the Recommended Order adopted in the Hiss Final Order found: Neither the FLUM nor the FLUE designates a category of land devoted to conservation use. Designations tending to include conservation uses are Public Resource . . .. The Public Resource Lands designation is assigned to, among other parcels, the Walton Tract where any preservation or conservation uses will be subjected to the use of a part of the tract as a landfill, as discussed in Paragraphs 246 et seq. The primary provision in the plan describing the uses associated with Public Resource Lands is Policy 1.2 of the FLUE, which is "[t]o acquire and protect Public Resource Lands." In addition, FLUE Policy 1.2.3 permits environmental management practices on such lands, including controlled burning. These provisions are readily applicable to the other three parcels designated as Public Resource Lands and the part of the Walton Tract undisturbed by the landfill. However, these provisions are inconsistent with the portion of the Walton Tract proposed for use as a major landfill and other areas affected by this intensive use. * * * The inclusion of the entire Walton Tract in the Public Resource Lands is inconsistent with the proposed use of a substantial part of the tract as a major landfill. If the County eliminates this inconsistency by designating the actual landfill area and other affected areas as institutional or other public facilities, the Public Resource Lands designation would be consistent with the conservation designation. If the actual landfill area remains designated as Public Resource Lands, the designation of the Walton Tract as Public Resource Lands precludes, to the exclusion of fair debate, a finding that the Public Resource Lands designation is consistent with the criterion of a conservation designation. * * * It is fairly debatable that the plan is consistent with the criterion of a policy addressing intergovernmental coordination with respect to the conservation, protection, and appropriate use of interjurisdictional vegetative communities. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. [F.A.C. Rule 9J-5.013(2)(b)7. and 9.] To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended use of part of the tract as a major landfill. The early stages of planning for the landfill may prevent the plan from dealing specifically with the likely environmental impacts of a landfill yet to be designed or sited. However, the plan should contain many of the provisions of the management plan promised for the Walton Tract. If, as the Supportive Material indicates, the landfill disturbs one-third of the Walton Tract, siting the landfill among the important environmental resources in the area is a critical task requiring more from the plan than inaccurately designating the entire tract as Public Resource Lands or promising the issuance of a management plan at some point in the future. The plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area. Detailed and effective safeguards in the plan for the Walton Tract and surrounding natural resources would require that the landfill project conform to these requirements. If some aspect of the landfill design prevents conformance with such plan provisions, the County may amend the plan with in [sic] compliance with all procedural requirements of the Act, including public participation and review by DCA. Absent effective provisions concerning the landfill to be placed in the Walton Tract, it is impossible to find that the plan contains policies addressing implementation activities for the protection of existing natural reservations. The Walton Tract is designated in its entirety as Public Resource Lands, and the conversion of part of this land to a landfill is not consistent with the protection of the entire tract. The same findings apply with respect to the designation of environmentally sensitive land because the Walton Tract is the site of critical natural resources, including various types of wetlands, part of Cow Pen Slough, and part of the Myakka River floodplain, as well as a bank of part of the Myakka River. * * * 402. To the exclusion of fair debate, the FLUM is not consistent with provisions to protect and acquire environmentally sensitive lands due to the conflict between the Public Resource Lands designation of the Walton Tract on the FLUM and the proposed use of part of the tract as a major landfill . . .. In part, the Recommended Order adopted in the Hiss Final Order concluded: 76. Based on the ultimate findings of fact contained in Paragraphs 366 and 367, the plan . . . is consistent with the criterion of the designation on the FLUM of proposed conservation land uses, if the designation of the part of the Walton Tract proposed for actual landfill use and any other affected area are redesignated from Public Resource Lands to another designation such as institutional or other public facilities. Otherwise, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of the designation on the FLUM of proposed conservation land uses. * * * Based on the ultimate findings of fact contained in Paragraphs 376 et seq., the plan is consistent with these [9J-5.013(2)(c)7.-9.] criteria with one exception. The plan is not in compliance with the Act and Chapter 9J-5 because the treatment of the entire Walton Tract is not consistent with criteria of the protection of existing natural reservations and designation of environmentally sensitive land for protection. The designation of the Walton Tract as Public Resource Lands despite the proposed use of part of the tract as a landfill demands, to the exclusion of fair debate, more specificity in the plan coordinating the land uses that will be permitted on the tract with the sensitive natural resources already there. Because of the intense use proposed for part of the tract and the proximity of important natural resources, the promise to adopt later a management plan for the Walton Tract is insufficient. . . . The proposed uses and special features of the Walton Tract require that, regardless of its future land use designation, the plan provide details of the management plan, if the plan is to contain policies addressing implementation activities for the protection of environmentally sensitive lands and existing natural reservations. [Fn. 43.--This determination remains applicable even if the County redesignates the Walton Tract as institutional or other public facilities. Although arguably redesignation could result in the tract losing its status as an existing natural reservation, the tract, or at least parts of it, would continue to represent environmentally sensitive lands, whose status is unaffected by any change in designation.] * * * 109. Based on the ultimate findings of fact contained in Paragraph 402, the plan is not in compliance with the Act and Chapter 9J-5 because the FLUM is not consistent with FLUE objectives and policies to protect and acquire environmentally sensitive lands with respect to the designation of the entire Walton Tract . . .. The Hiss Final Order required the following Remedial Action pertinent solely to the Walton Tract: 5. The County shall revise the section in the solid waste portion of the Public Facilities chapter that refers to "landfill Site Feasibility Report: Walton Tract and Central County Solid Waste Disposal Complex - Preliminary Cost Estimate" to reflect that the Walton Tract is currently only one potential location for the proposed landfill, subject to additional study. The County shall also adopt a policy requiring that at such time as a final decision is made on the location and type of solid waste treatment facility to be developed, the Future Land Use Plan Map Series and Public Facilities chapter will be amended accordingly to reflect that decision. The RU-5 Walton Tract Amendments.-- In part, RU-5 amends Figure 23, a part of the Future Land Use Map (FLUM) Series, to delineate 2,972 acres of the Walton Tract as "Public Resource Lands" and 3,179 acres of the Walton Tract as "Central County Solid Waste Disposal Complex and other Government Use." RU-5 specifically locates a proposed solid waste disposal complex on 550 acres of the 3,179 acres designated as "Central County Solid Waste Disposal Complex and other Government Use." The 2,972 acres in the Walton Tract designated as "Public Resource Lands" were zoned Open Use Conservation (OUC) by Sarasota County Ordinance 90-54. RU-5 also amends the Public Facilities Element of the Sarasota County Comprehensive Plan (Apoxsee) by adding Objective 2.6 and Policy 2.6.1. Objective 2.6 is: To develop a solid waste disposal complex and site which is economically feasible and which has minimal environmental impacts. Policy 2.6.1 states: The Central County Solid Waste Disposal Complex shall minimize, to the greatest extent possible, potential environmental impacts consistent with the adopted stipulations contained within Ordinance No. 90-54 and Resolution No. 91-149. Prior to development of the Central County Solid Waste Disposal Complex a resource based Land Management Program shall be adopted consistent with the "Principles for Evaluating Development Proposals in Native Habitats" and all other relevant policies in the Environment Chapter. The Public Facilities Supportive Material adopted as part of RU-5 states: The Board also approved a special exception for a 550 acre parcel for the Solid Waste Disposal Complex including a sanitary landfill and other uses associated with the landfill operations. * * * In order to minimize potential environmental impacts to the greatest extent possible, stipulations in the special exception approval include requirements for submission of studies such as the completion of a background Water Quality Monitoring Plan and a resource based Land Management Program, prior to the development of the landfill or other associated operations. Data and Analysis.-- The RU-5 amendments relating to the use of a portion of the Walton Tract for the Central County Solid Waste Disposal Complex are supported by the best available data and by appropriate analysis of the data. The County utilized all the appropriate data available at the time of the adoption of RU-5. All analysis required to be performed on the data through the time of the final hearing was performed and taken into consideration. Both the data and the analysis of the data through the time of the final hearing support the selection of the Walton Tract site for the Central County Solid Waste Disposal Complex. The total functional population of Sarasota County is projected to increase from 337,471 in 1990 to 475,353 in 2010. Meanwhile, with the closure of numerous unlicensed dump sites in the early 1970s, the County began operating the Bee Ridge Landfill in 1972. Although two of the County's four municipalities formerly operated landfills, those facilities have been closed due to environmental problems. Bee Ridge currently is relied on to serve all the municipalities as well as the entire unincorporated area of Sarasota County. Bee Ridge receives an average of 1,400 tons of solid waste per day (511,000 tons a year). Even assuming a 50% reduction in solid waste disposal through recycling, the County is projected to require solid waste disposal facilities capable of land filling over 850,000 tons per year. A County study entitled Solid Waste Management and Resource Recovery Plan, completed in 1980, indicated that landfilling would likely remain an essential means of managing the County's solid waste stream for the foreseeable future and that it would be necessary to obtain a replacement facility for the Bee Ridge Landfill. The Bee Ridge Department of Environmental Regulation (DER) permit expires in 1995. Bee Ridge was not constructed with liners meeting current DER permit requirements. Although the County has installed an underground "slurry wall" at the perimeter to attempt to prevent contamination from leaching out, there is no assurance that DER will renew the permit. In any event, Bee Ridge is projected to reach its maximum height by the mid-1990s. In addition, the ability to expand Bee Ridge is not assured, due to strong opposition from neighboring property owners. In 1986, the opportunity arose to acquire the Walton Tract without the use of condemnation, and the County authorized a specific feasibility study performed on the 6,151 acre tract. The study examined the parcel in terms of Florida statutory landfill requirements, physical characteristics of the site, hydrogeology and soils, landfill block configurations, environmental considerations, and regulatory agency comments. Although the study indicated that only 3,600 acres would be required for a landfill, the entire tract was purchased on advice of professional staff to maximize siting flexibility and ensure sufficient areas for perimeter buffers, wetland mitigation, and wildlife conservation areas. The purchase price was $8.6 million, paid out of the proceeds of an $80 million Solid Waste System Revenue Bond Issue. Preliminary cost estimates were prepared for the initial 20 years of the life of a landfill on the site. The estimate came to $39 million. At the time the Revised and Updated Sarasota County Comprehensive Plan was being compiled in the years prior to its adoption in 1989, the County had not yet identified an exact landfill site on the Walton Tract. Accordingly, Apoxsee identified the entire Walton Tract was identified as the general area for the proposed Central County Solid Waste Disposal Complex. The Walton Tract was also designated entirely as "Public Resource Lands" since the County regarded the "Public Resource Lands" use designation to permit public facilities in careful conjunction with large conservation areas of important native habitat, e.g., a potable water wellfield and water treatment plant on the Carlton Reserve; a solid waste disposal complex on the Walton Tract; and RV parks, campsites and active recreation facilities at Oscar Scherer State Recreation Area and Myakka River State Park. In the spring and summer of 1991, after entry of the Hiss Final Order, the Board of County Commissioners held public hearings to determine whether the Walton Tract should once again be designated as the site for the Central County Solid Waste Disposal Complex to accommodate a Class I landfill, composting areas for yard waste and yard waste/sludge recycling, and a Class III landfill for construction debris, and, if so, to determine the specific location and extent of the Complex, in the context of a rezoning and special exception proceeding. During the course of the hearings the County Commission considered detailed presentations by the county professional staff, expert consultants and the public concerning the suitability of the Walton Tract site, as well as other sites, for a solid waste disposal complex. The Commission also considered, as part of the evidence, a Draft Alternative Siting Study prepared by the engineering firm Camp Dresser & McKee (CDM) to meet the regulatory requirements of the EPA and Corps of Engineers under Section 404 of the Clean Water Act and the requirements of the Recycle Now! Chapter Amendment. At the conclusion of the hearings, the County Commission, by Ordinance 90-54 rezoned 3,179 acres of the Walton Tract to Government Use (GU) and 2,972 acres to Open Use Conservation (OUC). The Commission, by Resolution 91-149 also designated a reduced 550 acre site (instead of a 1,187 acre site) for the Central County Solid Waste Disposal Complex subject to final action on Comprehensive Plan Amendment RU-5, which was adopted by Ordinance 91-41 on July 23, 1991, after another public hearing at which all the evidence from the rezoning and special exception hearings was received into the record. (a.) Economic Feasibility.-- The Walton Tract site is centrally located in the County, between what are planned to be the County's major population concentrations, and close to the Laurel Road interchange with I-75 which is committed to be constructed by FDOT in 1993 under an agreement with the County. This location provides efficient transportation access to the rest of the County. The trend in solid waste management is toward centralizing solid waste disposal facilities due to the cost of the facilities, including the cost of permitting; the ability to achieve economies of scale; the increased reliability inherent in operating a limited number of facilities; and the advantages of focusing budget-limited management and regulatory compliance resources. Transportation costs with a centralized facility are offset by the use of transfer stations which greatly compress the solid waste to reduce the number of trips from the transfer station to the central facility. Sarasota County is already successfully using this system. The Draft Alternative Siting Study identifies three other properties besides the Walton Tract as suitable. During the public hearings before the County Commission, however, two of the sites (D and E) were strongly opposed by citizens living around those potential sites and the third site (G) was closer to the Myakka River and could be in conflict with the Myakka River Wild and Scenic Management Plan. From the standpoint of economic feasibility, the County Commission was advised: The County has certain bond obligations due to the purchase of site F [the Walton Tract] to provide a solid waste disposal facility. The legal and future bond financing issues must be considered against the potential benefits of selecting another site. The County's bond counsel also advised the County Commission that, if the County elected not to locate the solid waste disposal complex on the Walton Tract, the County would have to pay back to the Solid Waste System Revenue Bond enterprise fund the fair market value of the Walton Tract from some other revenue source. (b.) Adjacent Property.-- In contrast to the other suitable sites, the property owners closest to the proposed site on the Walton Tract are not opposed to the solid waste disposal complex in light of the County's ability to provide 1,000 foot buffers and avoid access conflicts due to the size and location of the Walton Tract. Due to the 6,151 acre size of the Walton Tract, the solid waste disposal complex, as approved by the County Commission, including all borrow pits, is located more than 8,000 feet from the closest point on the Myakka River, a designated Wild and Scenic River, and the testimony indicates that heavy equipment would not be heard on the river. Due to the flexibility in siting the solid waste disposal complex, and the 100 foot height limitation placed on the landfill by the County Commission, the landfill will not be seen on Lower Myakka Lake or the Myakka River. Due to the location of the solid waste disposal complex on the Walton Tract, together with the hydrogeologic characteristics of the site, no adverse impact on the Carlton (Ringling MacArthur) Reserve potable water wellfield located several miles to the east across the Myakka River is to be anticipated. The restriction of the solid waste disposal complex and associated borrow pits to the northwest portion of the Walton Tract and the designation by the County Commission of the remainder of the property as Public Resource Lands results in approximately 3,000 acres of the Walton Tract, contiguous to Myakka River State Park and the Carlton Reserve to the east, being placed in a conservation land use designation, linking these natural areas into a contiguous system of 55,000 acres of high quality native habitat in protected public ownership. (c.) Character of the Walton Tract.-- Hundreds of hours over a period of approximately five years were spend on-site at the Walton Tract by experts in environmental, engineering and other scientific disciplines to collect and analyze data on soils; topography; natural resources, including habitats, flora, and fauna; and historic resources to determine whether, and where, a solid waste disposal complex should be sited on the tract that would be economically feasible and minimize environmental impacts. Every wetland and upland habitat on the Walton Tract as well as likely ecological corridors and preservation areas, including the Myakka River 100 year floodplain and mesic hammocks, have been identified and verified in the field. The methods that were used to identify habitats, including likely habitats of threatened and endangered species, met professionally accepted standards, particularly for planning purposes. Environmental constraints were identified at the beginning of the assessment of the Walton Tract and drove or determined the siting process. Over the course of a five year period, there were no sightings of threatened or endangered species that would render the designated site of the complex or the borrow pits unsuitable for the proposed use. The designated site was suitable from the standpoint of minimizing environmental impacts. The pine flatwoods and isolated wetlands within the solid waste disposal complex footprint are neither rare nor endangered, constituting 57% and 17% of the area of the County, respectively, and there are suitable formerly improved pasture areas on the site to mitigate these wetlands on a type-for- type, one-for-one ratio. There is also a large 300 acre area adjacent to Cow Pen Slough suitable for mitigation by rehydrating wetlands previously impacted by the channelization of Cow Pen Slough in the 1960's. The proposed location of the landfill on the site is the most appropriate from the context of habitat, wetlands and wildlife. The complex and borrow pits protect water resources by being located outside the watershed of the Myakka River and outside the 100 year floodplain of Cow Pen Slough. Also, the Class I landfill will be elevated approximately three feet above grade, and the entire solid waste disposal complex will be surrounded with a bermed stormwater management system at least five feet above grade that will not only treat the stormwater to required standards but also provide additional protection against flooding beyond a 100 year flood event. The reduced 550 acre size of the solid waste disposal site is reasonable for meeting the solid waste recycling and disposal needs of the County for a 20 year planning period. CDM used the best available data, including the Federal Emergency Managment Agency (FEMA) Flood Insurance Rate Maps (FIRM), in siting the complex out of the 100 year floodplain. (The U.S. Soil Conservation Service 1985 Flood Plain Management Study of the Cow Pen Slough is not reliable data with respect to the extent of the 100 year floodplain.) The site designated for the landfill on the Walton Tract has no geotechnical or water resource factors that would preclude it from being suitable for a landfill. There is no realistic danger of groundwater contamination of either the surficial or the deeper Floridan aquifer beneath the landfill in light of the required multiple liners and the required leachate collection and treatment systems. A modern landfill operation is not necessarily incompatible with surrounding wildlife. The landfill would be limited to an exposed working face of solid waste no more than 100 feet by 200 feet which must be covered daily. This reduces the landfill's attactiveness to seagulls and other scavengers. Many species of birds, including sandhill cranes, woodstorks, and bald eagles, continue to be seen within several hundred yards of the working face of the Bee Ridge landfill and its heavy equipment. Over the 12 year existence of the Bee Ridge landfill, there has been no quantifiable decline in such wildlife. The herd of deer adjacent to the landfill had increased substantially over that period. Internal Consistency.-- It was not the intent of RU-5's Public Facilities Objective 2.6 and Policy 2.6.1 that the specifically designated site for the solid waste disposal complex on the Walton Tract would be invalidated if any other possible site were found to have even marginally less environmental impact. Although there are other sites arguably with less environmental impacts, according to a rating system developed for evaluating the suitability of potential sites, other factors also went into the selection of the Walton Tract site. Both Public Facilities Objective 2.6 and Policy 2.6.1 contemplate the development of a solid waste disposal complex and site. They mean that the designated site should be developed in a manner which reduces environmmental impacts as much as possible. It certainly is at least fairly debatable that they contemplate the development of the Walton Tract site as a landfill. RU-5's amended "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., provides in part: In cases where a wetland is no longer capable of performing defined environmental functions and providing defined environmental values, or in cases where no other reasonable alternative exists other than disrupting a wetland, some alteration may be allowed. As amended by RU-5, this portion of the "Principles for Evaluating Development Proposals in Native Habitats" focuses on wetland mitigation requirements on other portions of a landowner's property, when a wetland must be altered to allow reasonable, beneficial use of the property. Section VI.A.2.e. of these principles does not require the County, or any other property owner, to demonstate, prior to developing their property, that there is "no reasonable alternative location in the County which impacts less wetlands or an equivalent acreage of wetlands of less environmental value." It certainly is at least fairly debatable that they do not. The Supportive Material for Apoxsee's Recreation and Open Space Element states: "Large portions of the Walton Tract cannot be used for landfill purposes because they are in the floodplain of either the Myakka River or the Cow Pen Slough." Nothing in RU-5 is inconsistent with this data and analysis. The acreage being used for the landfill and associated uses are not in the floodplain. Through RU-5, Recreation Policy 1.1.4 of Apoxsee provided: "Ecologically benign, non-consumptive, resource-based uses shall be implemented at the Walton Tract and the Ringling-MacArthur Reserve." On March 10, 1992, RU- 6 was adopted and amended Recreation Policy to provide: "Recreational uses implemented on the Walton Tract and the T. Mabry Carlton, Jr., Memorial Reserve [formerly known as the Ringling-MacArthur Reserve] shall be limited to activities which are ecologically benign, non-consumptive and resource based." It is at least fairly debatable that this policy does not refer to the portion of the Walton Tract designated for use as a landfill. Future Land Use Element (FLUE) Objective 1.1, as amended through RU-5, restricts land uses on Public Resources Lands by requiring the County: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." FLUE Objective 1.2 is: "To acquire and protect Public Resource Lands." The implementing policies under FLUE Objective 1.2 include: Policy 1.2.1 -- Sarasota County shall attempt to coordinate efforts to acquire public lands for conservation, preservation and open space. Policy 1.2.2 -- Provide adequate buffering of Public Resource Lands for potentially incompatible adjacent land uses. Policy 1.2.3 -- Permit normal management practices associated with native habitats. Again, it is at least fairly debatable that these objectives and policies do not preclude the designation of a part of the Walton Tract for use as a landfill. The Supportive Material for Apoxsee's FLUE states that the County will adopt "detailed management plans" for the Walton Tract (and the Ringling- MacArthur Reserve) and adds: In conjunction with the development of a portion of these two County-owned properties as a waste disposal complex and potable water supply, respectively, subtantial acreage is to be preserved to provide for wildlife corridors, wetlands protection, buffering zones, recreation, education, and open space uses. It is critical that any development within, and adjacent to, these Public Resource Lands be compatible with their inherent environmental values as well as the public values ascribed to them. The management plans . . . will address this issue. The County has not yet adopted a management plan for the Walton Tract landfill. But Public Facilities Policy 2.6.1 incorporates the detailed protective stipulations contained in Ordinance 90-54, which zoned the Walton Tract "Government Use" and "Open Use, Conservation," and in Resolution 91-149, which designated the site of the Central County Solid Waste Disposal Complex. These stipulations: require submission of a background water quality monitoring plan for review and approval by the County Natural Resources Department; require a preapplication meeting with the Stormwater Management, Natural Sciences, and Pollution Control Divisions prior to submission of a Master Stormwater Management Plan; limit post development runoff volumes to predevelopment volumes for storm events up to the mean annual (2.33-year) storm; require design and planting of littoral zones in all stormwater detention lakes in accordance with the County Land Development Regulations; require design and planting of littoral zones in all borrow lakes in accordance with the County's Earthmoving Ordinance; require submission of a final mitigation plan, including engineer drawings and plans for creating and maintaining adequate hydroperiods in created wetlands for review and approval by the Natural Sciences Division; require clear delineation and, during construction, marking of Preservation/Conservation areas; require appropriate sediment control devices around buffers of all wetlands within 500 feet of construction; prohibit disturbances in any Perservation/Conservation area except in approved construction areas or to provide approved access roads, fire lanes, utility transmission lines or nature trails; require notification to the Natural Sciences Division for determination of appropriate remedial action in the event listed species are observed; prohibits development of the solid waste disposal complex until a resource-based Land Management Program is prepared, approved and adopted; and limits the height of the landfill to 100 feet. In addition, Public Facilities Policy 2.6.1 prohibits development of the solid waste disposal complex until a resource-based Land Management Program is adopted consistent with the detailed requirements of the "Principles for Evaluating Development Proposals in Native Habitats" and the policies of the Environment Chapter of Apoxsee, e.g., Environment Policy 5.5.13, as well as Recreation Policy 1.1.4 and Future Land Use Policies 1.2.2 and 1.2.3. The Hiss Final Order does not require that a detailed management plan be adopted as part of RU-5 in order for RU-5 to amend the FLUM Series to designate a portion of the Walton Tract as the new County landfill. Rather, it was critical that the 1989 "plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area." (Emphasis added.) Recommended Order, Finding of Fact 378. It stated that "the plan should contain many of the provisions of the management plan promised for the Walton Tract." (Emphasis added.) Recommended Order, Finding of Fact 377. While not specifying the management plan guidelines believed to be necessary, the Hiss Final Order found that the plan was not "consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands [referring to F.A.C. Rule 9J-5.013(2)(b)7. and 9.]." (Emphasis added.) Recommended Order, Finding of Fact 376. Elsewhere, it found it "impossible to find that the plan contains policies addressing implementation activities for the protection of existing natural reservations." (Emphasis added.) Recommended Order, Finding of Fact 379. F.A.C. Rule 9J-5.013(2)(b)7. and 9. require objectives that "[protect] existing natural reservations identified in the recreation and open space element" and "[designate] environmentally sensitive lands for protection based on locally determined criteria which further the goals and objectives of the conservation element." The plan, as amended through RU-5, contains guidelines for a management plan for the Walton Tract that are sufficiently detailed to meet the requirements of F.A.C. Rule 9J-5.013(2)(b)7. and 9. RU-5 is not inconsistent with the Support Material referred to in Finding 49, above. The final version of the management plan is not data or analysis that must precede the amendment of the FLUM Series. RU-6 amended Environment Policy 5.5.3 to read: By July 1, 1992, the Sarasota County Board of County Commissioners shall have adopted criteria for conducting and staff shall have conducted an analysis to identify habitats of high ecological values and strategies to physically link natural areas into a contiguous system. The criteria for identifying these areas should consider several major factors including the presence of endangered species, outstanding water resources, high quality natural habitat, and value as a wildlife corridor. The Future Land Use Map Series shall be revised to show the location of these areas of high quality ecological value. This provision is not inconsistent with RU-5. The portion of the Walton Tract designated for development as a landfill is made up of pine flatwoods and isolated, seasonal wetlands which are neither rare nor endangered habitats. Except for a minor portion of the westernmost borrow pit, it is outside the 100-year floodplain. 5/ It is outside the watershed of the Myakka River. It is set back from habitats of threatened or endangered species, as well as surrounding property owners. It is reasonably sized to meet the solid waste recycling and disposal needs of the County for the 20-year planning period. Consistent with Environment Policy 5.5.3, the 2,971 acres of the Walton Tract which RU-5 leaves designated Public Resource Land includes those areas which are contiguous to Myakka River State Park and the Carlton Reserve to the east, linking natural areas into a contiguous system, and providing protection to the outstanding water resources and high quality habitat in the Myakka River watershed and in the Cow Pen Slough watershed in the southernmost portion of the Tract. Historic and Archaeological Preservation.-- In part, the Recommended Order adopted in the Hiss Final Order found: 362. To the exclusion of fair debate, the plan is not consistent with the criterion of the depiction on the ELUM of historic resources. The depicted archaeological sensitivity zones, which represent projections of possible sites, do not purport to represent the location of, for example, the 78 or 79 sites on the Florida Master Site Plan and other historical resources, which are concededly vulnerable to development. In part, the Recommended Order adopted in the Hiss Final Order concluded: As relevant to the determinations contained in this section, . . . Rule 9J- 5.006(1)(a)(11), . . . requires that the "following generalized land uses shall be shown on the existing land use map or map series: . . . Historic resources." Rule 9J-5.003(35) defines "historic resources" to mean: all areas, districts or sites containing properties listed on the Florida Master Site File, the National Register of Historic Places, or designated by the local government as historically, architecturally, or archaeologically significant. Based on the ultimate findings of fact contained in Paragraph 362, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of showing historic resources on the ELUM. For instance, there are 78 or 79 sites in the Florida Master Site File that are, by definition, historic resources, but are not shown on any ELUM. The Hiss Final Order required the following Remedial Action pertinent to historic and archeological preservation: 2. The County shall revise its existing land use map to show the location of historic resources, including the generalized location of sites listed in the Florida Master Site File or National Register of Historic Places or otherwise designated by the County as historically, architecturally or archaeologically significant. * * * 4. The County shall revise its Future Land Use Plan Map Series to include the historic resources mentioned in paragraph 2 above. RU-5 amends the Historic Preservation Chapter of Apoxsee to indicate that the map provided in Figure 3 in the Future Land Use Map (FLUM) Series shows the location of "National Register sites and other historically significant sites in Sarasota County." It also amends Figure 3 to identify 78 National Register sites from the Florida Master Site File. Appendix A to "Section 3: Sites in Unincorporated Sarasota County Listed in the Florida Master Site File" also is amended to list these sites. In essence, RU-5 follows from the updating of the supporting documentation to Apoxsee by adding to the Existing Land Use Map (ELUM) Series and the FLUM Series verified historically significant sites in Sarasota County, namely the sites found on the National Register and on the Florida Master Site File List. The County also has performed extensive study of portions of the County in an effort to locate significant historic and archaeological sites. The study has located many potential sites. However, the sites have not yet been fully evaluated to determine if they are historically, architecturally or archaeologically significant. Therefore, they have not yet been added, or proposed to be added, to the National Register or the Florida Master Site File List, and they do not appear in Apoxsee, as amended by RU-5. The County's determination not to identify and depict more sites on RU-5 is supported by the best available data and analysis. In addition, RU-5 adopted Future Land Use Element (FLUE) Policy 1.13.1 which provides for the coordination of land uses with the protection of historical resources. As part of the process for issuing development orders, the County has incorporated review by the County Historian to determine the likelihood of the site being historically significant, and the County places conditions on various development permits to protect historically significant sites. Except for the failure of Apoxsee, before RU-5, to depict the locations of, "for example, the 78 or 79 sites on the Florida Master Site Plan and other historical resources, which are concededly vulnerable to development," the Historic Preservation Chapter of Apoxsee already has been exhaustively scrutinized and found to be internally consistent and in compliance. See Hiss Final Order. Floodplain Delineation and Protection.-- In part, the Recommended Order adopted in the Hiss Final Order found: To the exclusion of fair debate, the FLUM is not consistent with criteria of the depiction of floodplains; Big Slough, whether it is classified as a river, floodplain, or wetland; and minerals and soils. . . .. The omission of floodplains is complete. Nothing in FLUM-2 corresponds to the floodprone areas shown in Figure 27 in the Supportive Material. For example, the Conservation/Preservation areas surrounding the Myakka River are not coextensive with the larger floodplain of the Myakka River depicted in Figure 27. The omission of floodplains is exacerbated by the absence of plan provisions providing effective protection for these critical natural drainage features, except for the Myakka River floodplain. * * * To the exclusion of fair debate, the plan is not consistent with criteria of objectives to ensure the protection of floodplains (other than that of the Myakka River), floodplain- associated soils, and wetlands (due to the inadequacy of the mitigation provision). Policy 5.5.8 of the Environment Element promises to adopt land development regulations to regulate develop- ment and specify necessary design standards for floodplains. In the absence of any undertaking in the plan to require that land uses in the floodplains be consistent with their function, Policy 5.5.8 does not resemble an objective ensuring the protection of floodplains. To the exclusion of fair debate, the plan is not consistent with criteria of objectives to coordinate the future land uses with topography, soil conditions, and availability of facilities and services, with respect to floodplains and the unrestricted use of septic tanks 6/ in the Urban area. The Supportive Material advises that future land uses in the floodplains must be less intensive than in the past. Except for the Myakka River floodplain, the plan fails to coordinate future land uses with the unique topography and soil conditions of the floodplains because the plan does not require that any development in the floodplains be consistent with their functions. In part, the Recommended Order adopted in the Hiss Final Order concluded: 83. Based on the ultimate findings of fact contained in Paragraphs 372 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of the depiction on the FLUM of floodplains, Big Slough (regardless of its classification as a river, wetland, or floodplain), and minerals and soils. * * * 96. Based on the ultimate findings of fact contained in Paragraph 388, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of objectives to ensure the protection of flood- plains other than that of the Myakka River, floodplain-associated soils, and wetlands due to the inadequacy of the mitigation provisions. 7/ The Hiss Final Order required the following Remedial Action pertinent to floodplain delineation and protection: The County shall amend "Figure 27: 100-year Floodprone Areas" to depict the location of all 100-year floodplains . . . and adopt Figure 27, as amended, as an addition to the Future Land Use Map Series. The county shall amend "Figure 5: General Soil Associations in Sarasota County" to indicate general locations of known sand and gravel deposits, and adopt Figure 5, as amended, as an addition to the Future Land Use Map Series. * * * 9. The County shall adopt a new policy in the Future Land Use Plan, to provide that no development order shall be issued which would permit development in floodplains or on floodplain- associated soils that would adversely affect the function of the floodplain, or that would degrade the water quality of water bodies associated with the floodplains in violation of any local, state or federal regulation, including water quality regulations. In part, RU-5 amends FLUE Objective 1.1 to state: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." RU-5 also adds the following policies: Policy 1.1.5: "All future development shall be consistent with the detailed master plans for each drainage basin as they are adopted through the Basin Master Planning Program." [Revision of Environment Policy 2.1.8.] Policy 1.1.6: "No development order shall be issued which would permit development in 100-year floodplains, as designated on Federal Emergency Management Agency [FEMA] Flood Insurance Rate Maps [FIRM] or adopted County flood studies, or on floodplain associated soils, defined as Soils of Coastal Islands, Soils of the Hammocks, Soils of Depressions and Sloughs, and Soils of the Floodplains and shown in figure 5, that would adversely affect the function of the floodplains or that would degrade the water quality of waterbodies associated with said floodplains in violation of any local, State, or federal regulation, including water quality regulations." Policy 1.1.8: "'Figure 27: 100 - Year Floodprone Areas' shall be adopted as Future Land Use Plan Map 5." Policy 1.3.2: "'Figure 5: General Soil Associations In Sarasota County' shall be adopted as Future Land Use Plan Map 4." RU-5 also adds Environment Policy 5.8.2: Floodplain functions shall be protected by application of the Land Development Regulations (Ordinance No. 81-12, as amended) and Goals, Objectives, and Policies of the Public Facilities and Future Land Use Plans. RU-5 adds Public Facilities Policy 3.2.8: New development in the 100-year floodplains shall be consistent with the Goals, Objectives and Policies of the Environment, Public Facilities, and Future Land Use Plans. By virtue of the RU-5 amendments, which use the best available data (the FEMA FIRM) and appropriate analysis, the Apoxsee now depicts the floodprone areas in the County and plans appropriately for their protection. It is at least fairly debatable that the plan provisions are internally consistent. Septic Tanks.-- In part, the Recommended Order adopted in the Hiss Final Order found: A similar lack of coordination exists with respect to the unrestricted use of septic tanks in Urban areas. The Supportive Material discloses "chronic" septic tank failures in areas south of the City of Sarasota, south of Venice, and in the Englewood area at the southern tip of the County on the coast. The last area is one of the few areas remaining near the coast with significant amounts of vacant, unplatted land. Each of the three areas is adjacent to estuarine waters. The Supportive Material cautions that, without centralized sewer in the Englewood area, the County's last remaining shellfish harvesting area, which is in Lemon Bay, is threatened. The Englewood area also includes wellfields that draw upon the surficial aquifer, which is highly susceptible to contamination in this region. Failing to coordinate future land uses with topography, soil conditions, and availability of facilities and services, the plan allows the unrestricted use of septic tanks in these critical Urban areas. Promises to study the problem, prioritize areas for centralized hookup, and in the meantime "discourage" the use of on-site sewage disposal systems offer little in the face of chronic failures of on-site sewage disposal systems and the absence from Table 80 of any expenditures for a centralized wastewater treatment system. Sarasota Exhibit 38, which is the 1986 Englewood Sector Plan, illustrates, in its discussion of septic tanks, the historic lack of coordination between future land uses and topography, soil conditions, and the availability of facilities and services. The Sector Plan notes that the soils of the majority of undeveloped lands in the Englewood area are poorly drained with less than two feet between the surface level and the groundwater table. A 1970 study by the County Health Department concluded: "Based on test results it would appear that Englewood has already reached the point where further development without adequate centralized sewerage facilities will lead to increased problems with regard to fecal pollution of ditches and waterways." [Fn. 30--The Sector Plan mentions various requirements imposed by the County that, if incorporated into the plan, would help coordinate future land uses with topography, soil conditions, and availability of facilities and services. County Ordinance 81-12 prohibits septic tanks within 100 feet of a 25-year floodplain unless the lot is at least five acres. The same ordinance reportedly requires that "the groundwater table be maintained at not less than forty-eight (48 inches) [apparently from the bottom of the drainfield]." Sector Plan, p. VI-4. Also, the County requires hookup to centralized wastewater systems for all new residential subdivisions within one-quarter mile of an existing sewer line, although this requirement can be waived. Id. at pp. VI-4 and VI-5. Finding insufficient septic-tank restrictions imposed by the Department of Health and Rehabilitative Services, the County has adopted several ordinances regulating on-site sewage disposal systems. Plan, p. 166. Ordinances 83-14, 83-83, and 86-03 detail these requirements, but Appendix D, 2 does not describe them in much detail. More important, the restrictions contained in all of these ordinances did not find their way into the operative provisions of the plan.] Sector Plan, p. VI-4. In the context of a plan that allows unrestricted use of septic tanks anywhere in the Urban area, coordination is not achieved by a plan provision requiring "reasonable assurance" that development proposals within the watersheds of existing public potable surface waters (i.e., the upper Myakka River, both Myakka Lakes, and Big Slough) will not "degrade the quality of such water." Nor is coordination achieved by a provision offering the general assurance of protection and conservation of surface water and groundwater resources, or another provision promising the adoption of land development regulations to specify "design standards" in environmentally significant/sensitive areas like watersheds and water recharge areas. No plan provisions guide the review of specific development proposals. The plan contains no performance or design standards or any requirements to guide the preparation of such standards. [Fn. omitted.] The vague provisions governing the use of septic tanks in the Urban area do not provide, in the plan, a meaningful basis upon which to coordinate, in the plan, future land uses with topography, soil conditions, and availability of facilities and services. In part, the Recommended Order adopted in the Hiss Final Order concluded: 97. Based on the ultimate findings of fact contained in Paragraphs 390 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of an objective to coordinate future land uses with topography, soil conditions, and the availability of facilities and services, with respect to floodplains and the unrestricted use of septic tanks in the Urban area. Besides the provisions already mentioned in connection with floodplain delineation and protection, the Hiss Final Order required the following Remedial Action pertinent to septic tanks: . . .. The Public Facilities Element, Future Land Use Element, and other appropriate elements must contain objectives, with principles, guidelines and standards, to coordinate future land uses with topography, soil conditions, and available facilites and services, with respect to both floodplain protection and the use of septic tanks. The County shall amend Policy 1.1.2 and add or amend other appropriate objectives and policies in the Public Facilities Plan, as follows 8/: * * * Policy 3.2.2 The County shall prohibit the installation of septic tanks in areas designated urban on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water or adversely affect the natural function of floodplains; further, the County shall adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system. RU-5 amends Public Facilities Policy 3.2.2 to provide: The County shall prohibit the installation of septic tanks in areas designated Urban and Barrier Island on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water or adversely affect the natural function of floodplains as required by the provisions of the County Land Development Regulations (Ordinance No. 81-12, as amended); Ordinance No. 83-83, regulating design, construction, installation, utilization, operation, maintenance and repair of individual on-site sewage disposal systems, as amended; and any more stringent regulations applicable. Further, the County shall revise as necessary or adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system, when available. The County has admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. By the Stipulation, the County agrees to further amend Public Facilities Policy 3.2.2 by amending the last sentence to read: Further, the County shall require that all buildings served by on-site sewage disposal systems, except approved on-site greywater systems, connect to a publicly owned or investor-owned sewerage system within one year of notification by the County that such a system is available as defined in Chapter 10D-6.042(7), F.A.C. The County shall establish procedures for the notification of sewer availability. RU-5 also amends Public Facilities Policy 3.2.5 to make clear that the requirement for compliance with federal, state and local permit laws extends to individual on-site systems. It also provides: Soil surveys shall be required for septic tank permits. No individual on-site systems shall be permitted where soil conditions indicate that the system would not function without degrading water quality or where land alterations necessary to accommodate the system would interfere with drainage or floodplain functions. RU-5 also amends Public Facilities Policy 3.2.9 to provide: By 1994, the County shall begin implementation of its wastewater resource management program to be completed by 2020. The comprehensive plan, including the Captial Improvements Element, shall be amended by 1994 to reflect implementation of the program. Priority shall be given to providing centralized service to areas experiencing septic tank failure and areas where water quality has been adversely affected by current disposal methods. RU-5 added Environment Policy 5.8.3: Septic tanks shall not adversely affect water quality in accordance with Ordinance No. 83-83 and goals, objectives and policies of the Public Facilities and Future Land Use Plans. The vast majority of septic tanks in the County were installed prior to the adoption of increasingly stringent County regulations during the 1970s and 1980s. Since the early 1980s, there have been virtually no subdivisions approved for septic tanks in urban areas. With one seldom-used exception, all urban subdivisions (densities greater than one dwelling unit per acre) are required to have central sewerage facilities. (The exception, for subdivisions of half-acre lots where central water is provided, has proven not to be economically feasible for the developer in most cases.) Virtually all new subdivisions are being connected to large franchised systems. Consistent with Public Facilities Policies 3.2.2 and 3.2.5 and FLUE Policy 1.1.6, current regulations already provide that no septic tanks or drainfields are permitted within 100 feet of the 25-year portion of the 100-year floodplain. Under current County regulations, all lots are required to meet the County standards. When a septic tank system fails, the property owner is required to upgrade the system to the current county standards to the maximum extent physically possible on the property. Apoxsee's Capital Improvements Element provides for the expenditure of $3,403,000 for expansion of the County-owned centralized sewerage system. The County Health Department is currently developing a priority list for the extension of central sewerage systems into the older subdivisions in the County which are experienceing septic tank system failures due to the age of the systems. Funding for the extension of central sewerage into septic tank subdivisions is awaiting completion and approval of the priority list and an estimate of the costs. The timing of funding and implementation under RU-5 is reasonable and is supported by the best available data and appropriate analysis. Apoxsee specifically coordinates the density of urban development with central water and sewer service through FLUE Policies 1.7.2 and 1.7.3, as well as the application of the Urban Area Residential Checklist and the Urban Area Residential Density Matrix, which substantially reduces urban density when central water and sewer service are not provided. Potable Water Wellfields.-- In part, the Recommended Order adopted in the Hiss Final Order found: 242. The plan contains provisions conserving potable water and recharge areas. In the Public Facilities Element, for instance, Objective 3.1 is "[t]o establish a program of identifying and protecting existing and potential potable water supply sources." Policy 3.1.1 speaks of the adoption of a wellhead protection program by 1990, although this promise is nullified by the condition that the adoption of such a program is "subject to engineering studies and future deliberations and considerations." * * * Wellfields receive little direct protection in the plan. Objective 3.1 of the Public Facilities Element is "[t]o establish a program of identifying and protecting existing and potential potable water supply sources." As the language of this objective suggests, no such program exists, and the ensuing policies do little, if anything, in identifying implementation activities designed to achieve this objective. As already noted, Policy 3.1.1 states that the County will "ensure adequate protection for potable water supply systems," as well as recharge areas, "by initiating efforts to prepare and implement a wellhead protection program by 1990, subject to engineering studies and future deliberations and considerations." * * * Important protection of waterwells is derived from general provisions applicable to groundwater and potable water. Provisions governing groundwater have been discussed in connection with groundwater recharge. Provisions protecting potable water protect wellfields to the extent that groundwater provides potable water. For instance, Policy 5.3.2 of the Environment Element provides that the County shall implement water conservation measures. Measures to conserve water include the use of wastewater or stormwater runoff as a potable water source, as envisioned by Policies 2.1.4 and 2.1.5 of the Public Facilities Element. Likewise, Policy 1.2.6 promises that the County "will continue to explore ... water conservation strategies in cooperation with regional water supply authorities and other local entities." Water conservation measures will obviously protect wellfields by reducing demand and the possibility of overpumping. * * * 371. It is fairly debatable that the FLUM is consistent with criteria of the depiction of waterwells . . .. * * * It is fairly debatable that the plan is consistent with criteria of objectives and policies addressing the conservation of potable water, protection of natural groundwater recharge, and protection of waterwells. . . . . . .. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended use of part of the tract as a major landfill. * * * 385. It is fairly debatable that the plan is consistent with the criterion of an objective addressing the protection of water quality by the restriction of activities known to affect adversely the quality and quantity of identified water sources, including waterwells. The requisite protection is attained by policies protecting surface water and groundwater and conserving potable water, such as by investigating the use of treated wastewater effluent and stormwater runoff as potable water sources. * * * 387. It is fairly debatable that the plan is consistent with criteria of objectives to ensure the protection of waterwells . . .. In part, the Recommended Order adopted in the Hiss Final Order concluded: Based on the ultimate findings of fact contained in Paragraph 371, the plan is consistent with criteria of the depiction on the FLUM of waterwells . . .. There are no cones of influence that are required to be depicted on the FLUM because the Southwest Florida Water Management District has not identified any cones of influence in the County. According to Rule 9J-5.003(18), a "cone of influence" is "an area around one or more major waterwells the boundary of which is determined by the government agency having specific statutory authority to make such a determination based on groundwater travel or drawdown depth." * * * 91. Rule 9J-5.013(2)(c)1. requires that the plan contain "policies address[ing] implementation activities for the": 1. Protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells[.] 92. Based on the ultimate findings of fact contained in Paragraphs 380 and 385-386, the plan is consistent with criteria of objectives addressing the conservation of potable water and protection of natural groundwater recharge areas and policies addressing implementation activities for the protection of water quality by restricting activities known to affect adversely sources of potable water. * * * 95. Based on the ultimate findings of fact contained in Paragraph 387, the plan is consistent with criteria of objectives to ensure the protection of waterwells . . .. The only pertinent thing RU-5 did with respect to potable waterwells was to amend Public Facilities Policy 3.1.1 to indicate that, whereas the 1989 plan stated that County was "initiating efforts to prepare and implement a wellhead protection program by 1990," by the time of RU-5, the plans were to "continu[e] efforts to immediately implement a wellhead protection program." The delay in implementation of the program was predicated on County staff's advice: The extension of the deadline . . . allows for the need to establish base line data and because of the extensive requirements for monitoring such a program. . . . In the face of this explanation, the intervenors did not prove that the extension of the deadline was not supported by the best available data and appropriate analysis. RU-5 also added Public Facilities Policy 3.1.2 Sarasota County will continue working in close cooperation with the Southwest Florida Water Management District and other professional regulatory agencies to develop and evaluate the feasibility of adopting a model wellhead protection ordinance for major public supply wells and well fields shown on the Future Land Use Map Series. This effort may include requests to the SWFWMD for cooperative funding or technical assistance to conduct an inventory and assessment of existing and potential public supply wells areas and conditions. and Public Facilities Policy 3.1.3 For existing and proposed public supply wells shown on the Future Land Use Map or Map Series, a zone of protection shall be delineated within which land use will be regulated to protect public water supply resources, consistent with the wellhead protection program. Where cones of influence have been delineated, the zone of protection shall be consistent therewith. Where cones of influence have not been determined, Sarasota County shall use its best available data to consider delineating interim protection zones of between 200 feet to 400 feet in radius, depending on variables including, but not limited to, soil characteristics and surrounding uses. When DCA found fault with the absence of an explicit time frame for implementation of the wellhead protection program in Public Facilities Policy 3.1.2, the County admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 was not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. The settlement Stipulation amends the first sentence of Public Facilities Policies 3.1.2 as follows: Sarasota County will continue working in close cooperation with the Southwest Flroida Water Management District and other professional regulatory agencies to develop a model wellhead protection ordinance, culminating in Sarasota County adopting a wellhead protection ordinance during fiscal year 1992 for major public supply wells and well fields shown on the Future Land Use Map Series. The Department agrees that this amendment would bring RU-5 into compliance. The balance of the intervenors' criticism of the potable waterwell protection amendments in RU-5 are foreclosed by the Hiss Final Order, as recited above. Wetlands Mitigation.-- In part, the Recommended Order adopted in the Hiss Final Order found: 266. The mitigation requirement applicable to Marshes, Sloughs, or Wet Prairies addresses the habitat function of these wetlands. However, this requirement does not address the critical drainage function of those wetlands altered because "no other reasonable alternative exists." The drainage function is especially pertinent to Marshes and Sloughs, which are contiguous wetlands. Additional findings concerning the treatment of wetlands are at Paragraph 315 below. [Fn. 17 omitted.] * * * 315. Ignoring alterations to wetlands causing the loss of drainage functions, the mitigation requirement fails even to ensure the protection of the habitat function of wetlands, whose loss triggers the obligation to mitigate. The mitigation provision leaves to the developer the task of monitoring the success of the artificial wetlands created to replace converted wetlands. Assuming that developer monitoring may suffice with County supervision, the plan supplies no standards by which to evaluate a mitigation project or sanctions by which to enforce a mitigation agreement. These short- comings undermine the protection afforded Swamps, Marshes, and Wet Prairies. Testimony established that many wetland-mitigation projects fail, largely due to the absence of performance standards and failure to monitor. The Hiss Final Order contains no conclusions of law regarding wetlands mitigation. However, for reasons not readily apparent from the Final Order, the Remedial Action 13 does address wetland mitigation by requiring the County to "amend the Freshwater Wetlands section 'Principles for Development Proposals in Native Habitats.'" In most respects, RU-5 follows the specified remedial action. In those respects, the intervenors are foreclosed from challenging RU-5's amendment to the "Principles for Evaluating Development Proposals in Native Habitats." In some respects, there are difference between the specified remedial action and RU-5. The Remedial Action in the Hiss Final Order requires that the "Principles for Development Proposals in Native Habitats," Section VI.A.2.e., be amended to read: All alterations in wetlands which result in a loss of wetlands shall be mitigated on at least a two-to-one basis for wooded wetlands. Mitigated wetlands shall restore the type, nature and function of the altered wetland. A wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the County prior to or concurrent with the preliminary plan or site and development plan development review process. The success of mitgation shall be monitored by the applicant or his designees and shall also be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or borrow pits. Instead, RU-5 amends the "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., to read: All alterations in wetlands which result in a loss of habitat, shall be mitigated in accordance with performance standards adopted by the Board of County Commissioners. These performance standards shall ensure that the recreated wetlands provide values and functions equal to or, particularly in the case of an impacted or degraded wetland, greater than those of the wetland qualifying for alteration. Reasonable assurance shall be provided such that the recreated wetland will exhibit the defined environmental function, nature, and, where hydrologically feasible, similar type of the altered wetland. Mitigation ratios shall be as follows: One-to-one for herbaceous wetlands and two-to-one for wooded wetlands, in accordance with Level I performance standards; or Two-to-one for herbaceous wetlands and four-to-one for wooded wetlands in accordance with Level II performance standards. General Requirements for Level I and Level II Performance Standards: For all projects, a wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the County prior to or concurrent with the preliminary plan or site and development plan development review process. All federally listed threatened and endangered plant species shall be preserved, protected or relocated pursuant to a transplantation program to be implemented prior to construction authorization. The success of mitgation shall be monitored by the Applicant or his designees and shall also be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or borrow pits. Specific performance standards shall be contained in the County's Land Development Regulations (Ord. 81-12, as amended). Criteria for Level I Performance Standards: Level I standards shall include the following: the diversity of plants in the wetlands to be impacted shall be approximated in the recreated wetland; the habitat value of the recreated wetland shall approximate or exceed that of the wetland to be impacted; similar substrate shall be provided in the recreated wetland; success criteria (e.g., plant survival, animal diversity, hydroperiods) shall be established based on the best availabale technology, and shall be met before monitoring can be completed; and a hydroperiod maintenance plan, acceptable to the County, shall be prepared. Mitigation at ratios as described in (1), above, and based on success criteria for Level I performance standards may be provided prior to the alteration of any wetland qualifying for alteration. Mitigation with Level I performance standards may be provided in a defined area that is part of an environmental system or corridor that can enhance wildlife values and functions. Off-site wetland mitigation shall be allowed only where on-site mitigation or preservation is not feasible, as determined by the County. Criteria for Level II Performance Standards: Level II standards shall include the following: recreated wetlands shall be planted with at least three different native species at specific distances between plants; mulching may be used in lieu of planting; a hydroperiod maintenance plan, acceptable to the County, shall be prepared; and monitoring of success shall be required for at least three years. The County has admitted, for purposes of effectuating a settlement, that Section VI.A.2.e. of the "Principles for Evaluating Development Proposals in Native Habitats" is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. Under the settlement Stipulation, the County has agreed to revise Section VI.A.2.e. to specify that the "federally listed threatened and endangered plant species" to be preserved includes "those species that are listed or are C1 candidates for listing by the U.S. Fish and Wildlife Service; listed as threatened or endangered by the Florida Department of Agriculture and [C]onsumer [S]ervices pursuant to the Preservation of Native Flora Act, Section 581.185, Floirida Statutes; and listed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora." There is no basis in the record for the intervenors contentions that RU-5, as amended by settlement Stipulation between the DCA and the County, is contrary to the required Remedial Action or inconsistent with the Growth Management Act. 9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order that: (1) Sarasota County's RU-5 amendments to its comprehensive plan are not in compliance, but only for the reasons set out in the settlement Stipulation between the County and the DCA; (2) that the RU-5 amendments are otherwise in compliance; and (3) that the County be required to take the remedial action agreed to in the settlement Stipulation. RECOMMENDED this 31 day of August, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31 day of August, 1992.
