The Issue Whether Palm Beach County Ordinance 2018-031 (“Ordinance”) is internally inconsistent with Palm Beach County’s 1989 Comprehensive Plan (“Comprehensive Plan”), and is, therefore, not “in compliance” with section 163.3177(2), Florida Statutes (2018); and whether the Ordinance fails to establish meaningful and predictable standards for the use and development of land or for the content of more detailed land development and use regulations as required by section 163.3177(1), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Petitioner is a Florida limited liability corporation. Petitioner submitted written comments, recommendations, or objections to the County on October 30, 2018, during the period of time between the transmittal hearing and the adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167. The County exercises land use planning and zoning authority throughout unincorporated Palm Beach County. The Ordinance is a countywide, County-initiated Comprehensive Plan Text Amendment that would revise the FLUE to modify provisions for residential future land use designations. On July 13, 2018, the County Planning Commission conducted a properly noticed public hearing to review the proposed Plan Amendment and made recommendations to the Palm Beach County Board of County Commissioners (the “Board”) pursuant to chapter 163, Part II. One member of the public spoke in support of the amendment. The staff report that contained staff analysis regarding consistency with the Comprehensive Plan was made available to the Planning Commission prior to its deliberation. On July 20, 2019, Petitioner served a letter regarding the proposed Plan Amendment on Melissa McKinlay, Mayor and member of the Board. July 20, 2019, was three days prior to the date of the transmittal hearing for the proposed Plan Amendment. There was no evidence that the comments were received by Respondent on or after the date of the transmittal hearing. The July 20, 2019, letter stated that Petitioner “represents property owners located within the Palm Beach Farms plat in communities known as the Pioneer Road Neighborhood, the Gun Club Road Neighborhood, Monmouth Estates, and the Ranchette Road Neighborhood . . . . [Petitioner] has been active since early 2011 seeking to preserve the rural character of these communities.” Despite the foregoing, there was no competent substantial evidence adduced at the hearing to substantiate that Petitioner represented owners of property in any neighborhood other than the Pioneer Road neighborhood. On July 23, 2018, the Board conducted a public hearing to review the recommendations of the Planning Commission, and authorized transmittal of the proposed Plan Amendment to the state land planning agency and review agencies pursuant to chapter 163, Part II. The Board further directed staff to work with residents in the rural enclaves and to return with stronger language at the adoption hearing. Ten members of the public spoke in support of the Plan Amendment. There was no evidence that Petitioner, or any other person, spoke or presented written comments at the transmittal hearing in opposition to the Plan Amendment. The staff report and analysis regarding consistency with the Comprehensive Plan was made available to the Board prior to its deliberation. The state land planning agency issued a letter dated August 31, 2018, stating that the Agency “identified no comment related to important state resources and facilities within the Department’s authorized scope of review that would be adversely impacted by the amendment if adopted.” There were no other state agency comments received regarding the Plan Amendment. Subsequent to the transmittal public hearing, County staff worked with representatives from the Pioneer Road neighborhood and revised the language of the Residential Future Land Use amendment. On October 29, 2018, Petitioner sent a letter regarding the proposed Plan Amendment to Mayor McKinlay, service of which was apparently accepted by Denise Neiman, County Attorney. The evidence suggests that service was made on October 30, 2018, prior to the adoption of the Plan Amendment. On October 31, 2018, the Board adopted the Ordinance. The staff report and analysis regarding consistency with the Comprehensive Plan was made available to the Board prior to its deliberation. Five members of the public spoke in support of the Plan Amendment. There was no evidence that Petitioner, or any other person, spoke or presented written comments in opposition to the Plan Amendment, other than the October 29, 2018, letter described above. Existing Conditions The Pioneer Road neighborhood is approximately 550 acres of mostly Rural Residential property, interspersed with properties used for non-intensive commercial uses, such as plant nurseries and landscaping services. The Pioneer Road neighborhood contains between 175 and 220 developed home sites, many of which engage in light-scale personal agricultural uses (e.g., fruit trees, gardens, chickens, etc.). The neighborhood is served by private potable water wells and septic tanks. The Pioneer Road Area includes the Pioneer Road neighborhood, the Gun Club Road neighborhood, and surrounding low density Rural Residential enclave neighborhoods, and is but one of several neighborhood areas potentially affected by the Plan Amendment. Other rural neighborhood areas affected by the Ordinance include the State Road 7/Lantana Road Area and the Hyopluxo Road Area, each of which include a number of rural enclaves. The Plan Amendment The Plan Amendment is intended to revise the FLUE to modify provisions for the Future Residential Land Use designations. The Amendment, as described in the staff Final Report, is designed to: Recognize that there are Rural Residential areas within the Urban Suburban Tier that provide a valuable contribution to the housing diversity and lifestyle choices in the County. Establish that Agricultural Residential zoning is consistent with the urban residential future land use designations in the County. Recognize and support agricultural operations within residential future land use designations, including supporting the cultivation of agriculture and keeping of livestock. Provide additional specificity on the non- residential use location requirements in residential land use designations to ensure protection of residential neighborhoods. Allow Residential Multifamily Zoning on parcels with Medium Residential, 5 units per acre, future land use for properties using the Transfer of Development Rights or Workforce Housing Programs. The Plan Amendment applies countywide, and not to any specific neighborhood or property. Current neighborhood plans are considered when there are site-specific amendments. As related to Rural Residential enclaves, the Plan Amendment “will establish policy statements to direct growth away from those areas, or towards their edges,” and “will establish that the AR Zoning district is consistent with the urban residential zoning districts.” The Plan Amendment is also designed to “[r]ecognize and support agricultural operations within residential future land use designations, . . . including in the Urban Suburban Tier,” and restrict commercial vehicle activity and more intensive non-residential uses in residentially zoned areas except along major thoroughfares. Petitioner’s Challenge In its Amended Petition, Petitioner stated that the following amendments to the Comprehensive Plan “appear to recognize the existence and offer protection for the continuation of these Rural Residential Enclaves”: REVISE Policy 2.2.1-p: Rural Enclaves in Urban Service Area Application of Rural Standards. The County recognizes that there are long established rural residential enclave communities and homesteads in locations within the Urban/Suburban Tier that have Low Residential future land use designation. The County supports the continuation of those rural areas in order to encourage a high quality of life and lifestyle choices for County residents. In addition, within these areas In the Urban/Suburban Tier, the County may apply the ULDC standards for rural residential development as follows: in low density areas in Urban Residential future land use categories; on parcels presently used for agricultural purposes; or on parcels with a Special Agricultural future land use category. NEW Policy 2.2.1-w: The County shall adopt specific overlays in the Comprehensive Plan and/or Unified Land Development Code to protect the character of rural enclaves identified though the neighborhood planning process.[2/] Comprehensive Plan Policy 2.2.1-j, which is unchanged by the Plan Amendment, provides that: Table 2.2.1-j.1 establishes the consistent residential zoning and planned development district for the Residential Future Land Use Designations. In addition, within the Urban/Suburban Tier of the Glades Tier, the Agricultural Residential and Agricultural Production zoning districts are consistent with all residential future land use designations. As amended, Table 2.2.1-j.1 provides as follows: Table 2.2.1-j.1 Residential Future Land Use - Zoning Consistency1 Future Land Use Designation Consistent Zoning Zoning District Planned Development Agricultural Reserve AGR AGR-PUD Rural Residential AR4, RE5 RR-PUD, MHPD, RVPD Western Communities Residential AR PUD Low Residential AR4, RE, RT, RTS, RS PUD, TND, MHPD Medium Residential AR4, RE, RT, RS, RTU, RM/RH2 PUD, TND, MHPD High Residential AR4, RE, RT, RS, RM, RH PUD, TND, MHPD Congregate Living Residential3 RM PUD, TND, TMD, MUPD, MXPD3 The disputes raised in the Amended Petition were in “[t]he footnotes and caveats” to Table 2.2.1-j.1, which “will permit significant increases in future density, intensity and designs in a manner that will permanently and negatively alter the historic rural and unique character of these neighborhoods.” As pled, “the following three provisions completely undermine any effort to preserve the Rural Residential Enclaves”: REVISE Table 2.2.1-j.1 Residential Future Land Use – Zoning Consistency: Note No. 2 (RM District): The RM district is consistent with the MR-5 designation only for those areas properties that were zoned RM or RH prior to the Plan’s August 31, 1989 adoption or are 3+ acres utilizing the Transfer of Development Rights and/or Workforce Housing Program. REVISE Table 2.2.1-j.1 Residential Future Land Use – Zoning Consistency: Note No. 4 (AR Zoning) A lot with AR that was legally subdivided shall be considered a conforming lot. Properties with AR zoning with a residential future land use designation in the Urban/Suburban Tier are not required to rezone when subdividing for a residential use provided that the newly subdivided density is a maximum of 1 unit per acre, or when developing a non-residential use that is allowed in AR. Policy 2.2.1-n Non-Residential Uses Criteria. NEW Subsection (5). More intense non-residential uses may be allowed in residential zoning districts along major thoroughfares and roadways that are not residential streets. In addition to the foregoing, Petitioner alleged that the following deletion renders the Ordinance inconsistent with the Comprehensive Plan, and inconsistent with the Plan Amendment: 4. DELETE Language from FLUA Regulation Section Land Development Regulations in the Urban Service Area, Urban/Suburban Tier. The County may apply the ULDC standards for rural residential areas in the Urban/Suburban Tier in low density areas in the Residential future land use designations which are used for agricultural purposes, or on parcels with a Special Agricultural (SA) land use category. Areas within the Urban Service Area/Suburban Tier may be suitable for agricultural use throughout the implementation period of the Plan. It is not the intent of the Plan to encourage premature urbanization of these areas; however, agricultural uses are expected to convert to other uses consistent with the Plan when those agricultural uses are no longer economically viable. Agricultural uses permitted in the residential land use designation must be compatible with the protection of the residential lifestyle and quality of life. Table 2.2.1-j.1, footnote 2 In its Amended Petition, Petitioner alleged that revised Table 2.2.1-j.l, footnote 2, is inconsistent with new Policies 2.2.1-w and 2.2.1-p of the Plan Amendment. However, in his testimony, Mr. Crosby focused exclusively on the alleged inconsistency with Policy 2.2.1-w, not mentioning or otherwise offering evidence regarding inconsistency with Policy 2.2.1-p. As amended, revised Table 2.2.1-j.l, footnote 2, applies only to “RM/RH” zoning districts, and provides that “[t]he RM district is consistent with the MR-5 [Medium Residential/5 units per acre] designation only for those properties that were zoned RM [Residential Multifamily] or RH [Multifamily Residential High Density] prior to the Plan’s August 31, 1989 adoption, or when properties of 3 or more acres in size within an MR-5 designation qualify for a higher density through the Transfer of Development Rights and/or Workforce Housing Program density bonus programs.” The plain language of revised Table 2.2.1-j.l, footnote 2, establishes that it applies only to the MR-5 future land use designation, and only to properties that were either zoned as RM or RH before August 31, 1989, or that qualify for the listed density bonus programs. The three-acre threshold was established to prevent single lots in established MR-5 neighborhoods from increasing density out of character with the neighborhood. Prior to the amendment of footnote 2, if a property owner proposed new development on property with an MR-5 land-use designation and more than three acres of land and proposed to utilize Transfer of Development Rights or the Workforce Housing Program for a density increase, the property owner was limited to a Planned Unit Development (PUD). The amendment allows the application of the density bonus in an RM zoning district. Revised Table 2.2.1-j.l, footnote 2, is designed to foster infill development on MR-5 designated parcels that may be too small to be developed as a PUD. Furthermore, footnote 2 does not bypass the requirements of the Land Development Code Article 5 Density Bonus Programs, and applicants are still required to comply with those application review and approval processes. Finally, Petitioner’s expressed concern is the effect of the Plan Amendment on AR designated rural enclave communities such as the Pioneer Road neighborhood. Amended footnote 2 does not apply to AR zoning districts. Petitioner failed to prove, beyond fair debate, that revised Table 2.2.1-j.l, footnote 2, is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w, or that it improperly increases density. Furthermore, Petitioner, having failed to offer any evidence as to revised Table 2.2.1-j.l, footnote 2’s, inconsistency with revised Table 2.2.1-p, failed to meet its burden with regard to that element of its Amended Petition. Table 2.2.1-j.1, footnote 4 In its Amended Petition, Petitioner alleged that revised Table 2.2.1-j.l, footnote 4, is inconsistent with new Policies 2.2.1-w and 2.2.1-p of the Plan Amendment. However, in his testimony, Mr. Crosby focused exclusively on the alleged inconsistency with Policy 2.2.1-w, not mentioning or otherwise offering evidence regarding inconsistency with Policy 2.2.1-p. Petitioner argues that the footnote allows property owners to immediately subdivide their property to one unit per acre without review, rezoning, or going through the typical process if they are in the AR zoning district. As to the alleged inconsistency with new Policy 2.2.1-w, neither footnote 4, nor any other provision of the Plan Amendment, creates a specific overlay that can be compared for consistency with the authority for, but not the implementation of, the creation of future overlays. Petitioner failed to demonstrate, through competent, substantial evidence, that revised Table 2.2.1-j.l, footnote 4, is inconsistent with new Policy 2.2.1-w of the Plan Amendment. As to the alleged inconsistency between revised Table 2.2.1-j.l, footnote 4, and new Policy 2.2.1-p, the evidence demonstrated that the County implemented the Managed Growth Tier System to protect viable existing neighborhoods and communities, and to direct the location and timing of future development within five geographically specific Tiers -- Urban/Suburban, Exurban, Rural, Agricultural Reserve, and the Glades. Table 2.2.1-g.l of the FLUE establishes maximum density for Residential Future Land Use Designations. The lowest density designation in the Urban/Suburban Tier is Low Residential, one unit per acre (LR-1) designation, which allows up to one unit per acre. According to existing Table 2.2.1-j.l, the AR zoning district is not currently consistent with Low Residential (LR), Medium Residential (MR), and High Residential (HR) Future Land Use Designations. As set forth in Table III.C, LR, MR, and HR Future Land Use Designations are allowed within the Urban/Suburban and Glades Tiers. Through a review of County records, it was determined that there were thousands of acres of land currently zoned AR in the Urban/Suburban Tier. Thus, under the existing tiered land use designations, those AR zoned parcels were inconsistent with the Comprehensive Plan. Accordingly, the Plan Amendment revised Table 2.2.1-j.l to add AR zoning districts as being allowable in LR, MR, and HR Future Land Use Designations, thus making AR zoning districts consistent in the Urban/Suburban Tier. Revised Table 2.2.1-j.l, footnote 4, applies to AR zoning districts within the Rural Residential (existing), and the LR, MR, and HR Future Land Use Designations (added). The requirement for AR zoned properties to rezone with a maximum LR-1 density of one unit/acre is eliminated because such properties, with the proposed Plan Amendment, will be consistent with LR, MR, and HR Future Land Use Designations within the Urban/Suburban Tier and, thereby, maintain their agricultural residential uses. Proposed Policy 2.2.1-p recognizes that there are established rural residential enclaves within the Urban/Suburban Tier that have an LR Future Land Use Designation, and affirms the County’s support of the continuation of those rural areas. Allowing properties with LR Future Land Use Designations to subdivide up to one unit/acre does not increase density, as the LR Future Land Use Designation currently allows up to one unit/acre without the Plan Amendment. Policy 2.2.1-p is unchanged in establishing that the County may apply its Uniform Land Development Code (“ULDC”) standards for rural residential development in low density and agricultural future land use categories. Petitioner failed to prove, beyond fair debate, that revised Table 2.2.1-j.l, footnote 4, is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w, that it improperly increases density, or that any existing County subdivision regulations would not apply. Furthermore, Petitioner, having failed to offer any evidence as to revised Table 2.2.1-j.l, footnote 4’s, inconsistency with revised Table 2.2.1-p, failed to meet its burden with regard to that element of its Amended Petition. Policy 2.2.1-n.5. Revised Policy 2.2.1-n.5. is designed to direct more intense non-residential uses allowed in residential areas to properties “along major thoroughfares and roadways” and away from residential streets. In its Amended Petition and Mr. Crosby’s testimony, Petitioner alleged that revised Policy 2.2.1-n.5. is inconsistent with new policy 2.2.1-w regarding the adoption of specific overlays to protect “the character of individual rural enclaves identified through the neighborhood planning process.” As indicated previously, the Plan Amendment did not create a specific overlay to compare for consistency with the authority for, but not the implementation of, the creation of future overlays. Revised Policy 2.2.1-n.5. is designed to direct allowable non-residential uses to the periphery of residential communities “along” the major thoroughfares, which is not the same as “in proximity” to major thoroughfares. Pursuant to proposed Policy 2.2.1-n.5., local residential streets are not to be subject to commercial vehicle activity (other than home businesses), and more intense non-residential uses in residentially-zoned areas will be limited to those with access to major thoroughfares. The more restrictive language is intended to protect residential neighborhoods in any Managed Growth Tier. Revised Policy 2.2.1-n.5. cannot be read in isolation from other provisions of Policy 2.2.1-n, including the existing requirements that non-residential uses, when being permitted, be consistent with the Comprehensive Plan, and that their density and intensity be comparable and compatible with the adjoining residential area, and revised Policy 2.2.1-n.6., which requires conditions of approval of the non-residential uses “to ensure compatibility with surrounding residences.” Petitioner failed to prove, beyond fair debate, that revised Policy 2.2.1-n.5. is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w. Deleted Language Petitioner failed to offer any evidence as to the language deleted from the FLUA Regulation Section to demonstrate that it rendered the Plan Amendment inconsistent with the Comprehensive Plan. Petitioner therefore failed to meet its burden with regard to that element of its Amended Petition. County’s Evidence The County introduced competent, substantial testimonial and documentary evidence that the Plan Amendment is consistent with the Comprehensive Plan FLUE, Section I.C. “County Directions,” paragraphs 1, 2, 4, 5, and 15. The Plan Amendment promotes the protection of established neighborhoods, fosters agriculture uses, establishes that existing rural neighborhoods within the Urban/Suburban Tier cannot be replaced, and will manage growth in a manner to protect these areas. The County demonstrated that the Plan Amendment is designed and intended to direct growth towards activity nodes and centers and along major thoroughfares, and promote redevelopment and urban infill in appropriate areas of the County. The County introduced competent, substantial testimonial and documentary evidence that the proposed Plan Amendment is consistent with the Comprehensive Plan FLUE, Section II., Objective 1.1 “Managed Growth Tier System” by maintaining a variety of housing and lifestyle choices, enhancing existing communities, protecting land for agriculture, and providing opportunities for agriculture. The County introduced competent, substantial testimonial and documentary evidence that the proposed Plan Amendment is consistent with the Comprehensive Plan FLUE, Section II., Objective 1.2 “Urban/Suburban Tier - Urban Service Area,” Policy 1.2-a by protecting the character of rural enclaves through the promotion of agriculture and home-based commercial uses that are compatible with the neighborhoods, while directing increased density away from the center of rural neighborhoods.
Conclusions For Petitioner: Benjamin Crosby, Qualified Representative Palm Beach Farms Rural Preservation Committee, LLC 7425 Wilson Road West Palm Beach, Florida 33413 Troy W Klein, Esquire Law Office of Troy W. Klein, P.A. Suite 1B, Barristers Building 1615 Forum Place West Palm Beach, Florida 33401 For Respondent: Kim Phan, Esquire Jason Tracey, Esquire Palm Beach County Attorney's Office Suite 359 300 North Dixie Highway West Palm Beach, Florida 33401
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 Palm Beach County as Ordinance 2018-031, on October 31, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes; and that Petitioner’s challenge was not brought for an improper purpose as defined in section 120.569(2)(e), Florida Statutes, or section 120.595(1), Florida Statutes. DONE AND ENTERED this 8th day of January, 2020, 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 8th day of January, 2020.
The Issue The issues in this case are whether the Small Scale Comprehensive Plan Amendment No. 05S-01 (the Plan Amendment) adopted by Polk County (County) through the enactment of Ordinance No. 05-004 is “in compliance,” as that term is defined by Section 163.3184(1)(b), Florida Statutes,1 and whether Petitioner, Citizens for Proper Planning, Inc. (CPPI), has standing as an “affected person” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
Findings Of Fact The ECRA is a local special district governmental agency established pursuant to Chapter 163, Part III, Florida Statutes, and is composed of a seven-member board of directors. The boundaries of the Eloise Community Redevelopment Area include an area consisting of approximately 665 acres within the unincorporated Eloise area of Polk County (the Redevelopment Area). The Subject Property is located within the Redevelopment Area. See JE 8A. The ECRA meets once a month, except July, when they do not normally meet. Its purpose is to discuss and implement the ECRA Redevelopment Plan’s six objectives within the Redevelopment Area. The ECRA opposed the Plan Amendment by and through its attorney and submitted oral and written comments, recommendations, and objections to the County regarding the Plan Amendment during the Plan Amendment adoption proceedings. As a part of its presentation to the County regarding the Plan Amendment, the ECRA delivered to the County, ECRA Resolution No. R-05-01, objecting to the Plan Amendment. The parties agree that the ECRA has standing in this proceeding. Petitioner, Bruce Bachman (Mr. Bachman), resides in Winter Haven, Polk County, Florida. His residence is located outside of the Redevelopment Area and is approximately three (3) miles from the Subject Property. He is employed as the operator (since 1980) and general manager of Phoenix Industries, LLP, (Phoenix), located at 621 Snively Avenue, County Road (CR) 655 in Eloise, which is adjacent to and across the street from the Subject Property. Mr. Bachman has served as the Chairman of the Board of Directors of the ECRA since 1998. Phoenix operates a warehousing and distribution complex for dry, refrigerated, and frozen food products east of Snively Avenue and across the street from the Subject Property. The Phoenix property stretches north and south within an elongated area within the Redevelopment Area, and is open 24-hours a day, seven days a week.2 See JE 8A at "30". (The railroad, designated with a red line, runs north and south through the Phoenix property. JE 8A.) Phoenix has spent approximately $115,000 changing the angles of its buildings and moving docks so that trucks could maneuver on the property, and not have to enter Snively Avenue to do so. Mr. Bachman is involved with the Eloise residential area and the Redevelopment Area generally and his contributions to the Eloise area are well-noted in the record. His work with the community includes working with the students at Snively Elementary School. Individually, and on behalf of the ECRA, Mr. Bachman submitted oral and written comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Bachman has standing in this proceeding. Petitioner, Johnny Brooks (Mr. Brooks), resides at 143 8th Street, Eloise, Polk County, Florida, approximately three (3) blocks southwest from the Subject Property. His home is located within the main residential component of the Redevelopment Area. He was born in Eloise (on 5th Street) and has lived, with his wife, at the 8th Street address for 41 years. Mr. Brooks also serves as Vice-Chairman of the Board of Directors of the ECRA. Although disabled, Mr. Brooks is an active member of the Eloise Community. For example, he and his wife conduct a “homework club” at the Eloise Community Resource Center (opened in 2002) located between 7th and 8th Streets and Snively Avenue, which is east and down the block from his residence. JE 8A at "2". They also use the computer lab at the resource center for adult education. They use the neighborhood Snively/Brooks Park, JE 8A at "4", approximately one block south of the Brooks' residence and west of the Snively Elementary School, JE 8A at "3", for, among other activities, Easter egg hunts and Christmas parties. Mr. Brooks is also involved in the Eloise Neighborhood Association, which offers adult computer classes, GED classes, and classes in English as a Second Language. He and his family use other resources within the Redevelopment Area, such as the Snively Elementary School, and a post office, JE 8A at "1", which is located approximately one block north of the Subject Property between 4th and 5th Streets, near Snively Avenue. Mr. Brooks attends the Eloise United Methodist Church (built in 1966-1967), which is located on land designated as Industrial (IND) on the FLUM. 3 JE 8A at "10". This church is located on the southwest side of Snively Avenue, and approximately five or six blocks south of the Subject Property and approximately two blocks south of the Snively Elementary School and the Snively-Brooks Park.4 Mr. Brooks submitted oral comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Brooks has standing in this proceeding. CPPI is an organization comprised of approximately two hundred members, located throughout Polk County, Florida. CPPI has been an existing corporation since 2002. No application, request to join or payment of dues is currently required for membership. According to its executive chairperson, Jean Reed, its purpose is to "better plan for our growth in Polk County." Ms. Reed lives approximately one mile east of Eloise and four of five of the CPPI Board of Directors live within a mile of Eloise. All CPPI members live in the County. CPPI had been involved in County hearings and an administrative hearing involving a small scale comprehensive plan amendment. The organization currently encourages donations and plans to charge dues next year. CPPI submitted oral comments, recommendations and objections to the County during the Plan Amendment adoption proceedings. No evidence was presented to show that CPPI owns real property within the County. The County and the Intervenor dispute CPPI’s standing in this proceeding. The County is a political subdivision of the State of Florida, empowered to adopt, implement, and amend its Comprehensive Plan in accordance with the laws of Florida. Intervenor, Don C. Smith (Smith or Intervenor), owns the Subject Property. He purchased the Subject Property of 9.9 acres, which is part of a contiguous 20-acre site, in May of 2003. Mr. Smith learned that the Subject Property had an RL-4 land use designation just prior to his purchase of the Subject Property. The parties agree that Mr. Smith has standing in this proceeding. The Eloise Community Redevelopment Area The Redevelopment Area consists of approximately 665 acres. EE 2, Plan at 30. It is generally bounded by the CSX railroad to the north of US 17; by Lake Lulu and Shell Road on the east; by Snively Avenue (CR 655) on the south; and by Wahneta Canal and a portion of Wahneta farms on the west. JE 8A.5 (Snively Avenue is a four-lane undivided, major collector highway, but is not a buffer.) Both historically and presently, the Redevelopment Area has been composed of mixed uses in an urban area. Under the FLUM, there are eight separate land uses within the Redevelopment Area: Industrial (IND), Business Park Center (BPC- 2), High Impact Commercial (HIC), Institutional (INST-1), Community Activity Center (CAC), Residential Suburban (RS), Residential Low-1 (RL-1), and Residential Low-4 (RL-4). JE 8A. Beginning at the northern portion of the Redevelopment Area and moving from west to east, south of the CSX railroad and approximately one block south of US 17, the land uses designated on the FLUM are HIC, CAC, and HIC. Moving southward and east of Snively Avenue, the land use designation for a triangular portion of land is BPC-2. The land use designation adjacent to and immediately south of the BPC-2 designation and east of Snively Avenue is designated as IND. The IND designation covers the land in a southerly direction until Snively Avenue intersects with Croton Road. The land to the east and adjacent to the BPC-2 and IND designations is designated as RL-1. There is a small portion of land near Shell and Croton Roads at the southern boundary of the Redevelopment Area designated as Residential Suburban (RS). (The RS designation continues to the east outside of the Redevelopment Area. Lake Lulu is to the east of the eastern RL-1 and RS designations.) There is also land designated as RL-1 west of Snively Avenue, bisected by Unnamed Street, extending west of Wahneta Canal and south-southwest of the Snively Elementary School/Snively-Brooks Park area, to the southwestern boundary of the Redevelopment Area.6 The Snively Elementary School and the Snively-Brooks Park are located in the INST-1 land use designation.7 JE 8A. Approximately 150 children walk to and from this elementary school (with another 60 to middle and high schools outside the Redevelopment Area), utilizing the sidewalk bordering the western portion of Snively Avenue. The majority of the children attending the elementary school reside in the RL-4 designated area (mainly between 1st and 9th Streets). Mr. Smith agreed that the elementary school was in close proximity to the Subject Property. Mr. Smith testified that after meetings with the ECRA, he moved the fence in front of the Subject Property and business back ten feet so that the children could have more room to walk down the street. He also instructed his drivers of big trucks and heavy equipment not to enter the Subject Property during times when the children are going to and from school. There are several school crossings, crossing Snively Avenue. There is a bus stop at 5th Street and Snively Avenue for children attending middle and high school. JE 8A at "6". There are also bus stops on 7th Street and in front of the elementary school. JE 8A at "5" and "7". Except for the residential portions of the CAC and BPC-2 areas, the primary residential area of the Redevelopment Area is generally bounded by US 17 and 1st Street on the north, the Wahneta Canal on the west, and to just north of Snively Elementary School and 9th Street on the south. JE 8A; EE 2, Plan at 6 and Figure 2. The Eloise Community Redevelopment Area Uses 1. In General The Redevelopment Area, for at least the last 40 years, has supported a wide variety of industrial, commercial, institutional, and residential uses. Mr. Brooks and Mr. Smith testified that the Redevelopment Area has supported these mixed uses and has historically been defined by the interrelationship of these various uses with the predominant industrial activities within its boundaries. In the past, the established residential area (RL-4) was once a successful working-class neighborhood which primarily provided homes to those workers who were employed in the citrus plants located within the industrial classified areas. That residential area is now blighted and provides housing for low and moderate income families. Though well established, the RL-4 residential area contains a substantial number of vacant lots within that residential designated area. 2. Redevelopment Area Problems and Redevelopment During the early 1980’s, Eloise was a troubled community, suffering, for example, from theft and vandalism. The community had difficulty finding minority contractors willing to work at Phoenix because of the problems associated with the community. By the early 1990s, the residential area of the Redevelopment Area had deteriorated to such an extent that the Housing and Neighborhood Development Division (HND), an agency of the County, became actively involved in the redevelopment of the community. In 1992, the Eloise Neighborhood Association was formed. In 1996, a Neighborhood Revitalization/Redevelopment Plan was commissioned by HND. This plan was prepared by County staff. Also in 1996, the HND and the Eloise Neighborhood Association prepared the Eloise Neighborhood Revitalization/Redevelopment Plan, which “focused on the 138 acres generally bounded by the CSX Railroad on the east, the railroad and US 17 on the north, the Wahneta Canal on the west, to just south of the Snively Elementary School. Its recommendations included improved social services, land use changes, housing programs and infrastructure improvements.” In 1998, a Declaration of Slum and Blight was adopted by the Board through Resolutions Nos. 98-08 and 98-66, which, respectively, made a finding of blighting conditions in Eloise and adopted a redevelopment plan for Eloise. As a result, the ERCA was created pursuant to Section 163.356, Florida Statutes, to rehabilitate, conserve, and/or redevelop the Redevelopment Area. In 2000, the Board, pursuant to Section 163.360, Florida Statutes, adopted Ordinance No. 00-33, approving of the Eloise Redevelopment Plan as the Community Development Plan for the Redevelopment Area. It was the purpose and intent of the Board that the Eloise Redevelopment Plan be implemented in the Redevelopment Area. The Board made numerous findings in Ordinance No. 00- 33 including a determination that “[t]he Plan conforms to the general plan of the county as a whole” and that “[t]he Plan conforms to the Polk County Comprehensive Plan.” The Board also determined that “[t]he need for housing accommodations has increased in the area.” The Eloise Redevelopment Plan has not been adopted as part of the County's Comprehensive Plan. Thus, the Plan Amendment need not be consistent with the Eloise Redevelopment Plan to be “in compliance.” The May 2000, Eloise Redevelopment Plan describes the then existing ownership patterns such that “[t]he existing Eloise residential neighborhood between 1st and 9th Streets is subdivided into platted, fifty-foot wide lots. Most are 100-125 feet in depth. Lots along 9th Street abutting the school are platted as 70-foot wide lots. The ownership pattern in this area typically follows the lot lines. Most are individually owned lots. (See Figure 6).” EE 2, Plan at 16. Particularly relevant here, it is also stated: “Lots 33 and 34 [part of the Subject Property] are each approximately 9 acres and are owned by Alterman Transport Corporation (ATC). The site is currently used for storage and, in the past, was zoned GI [General Industrial] and R-3. In the current Comprehensive Plan, however, this site is planned for Residential Suburban (RS) to be compatible with the surrounding neighborhood. The trucks are a legal-nonconforming use and may continue but any future development shall comply with the RS land use district.” EE 2, Plan at 16. The Eloise Redevelopment Plan also recommended that the Alterman Trucking Annex, also known as the Alterman Transportation Corporation, be developed for up to 75 single- family homes by the end of 2004. EE 2, Plan at 32; JE 3 at 3 of (The Subject Property was also formerly known as the Alterman Motor Freight Terminal. JE 2, 8/10/2004 site map.) In 2001, the County also changed the classification of the Subject Property from RS to RL-4 pursuant to Ordinance No. 01-45. See Finding of Fact 54. In addition to the creation of the ECRA, the County, through the HND, has attempted to revitalize the Redevelopment Area. Since 1993, HND has spent approximately $4.4 million dollars in these efforts. These funds have been spent on community policing ($424,790), slum and blight clearing ($47,428), housing rehabilitation ($186,807), parks and recreation ($149,982), water/sewer/drainage ($1,094,677), construction of the Eloise Community Center ($2,147,037), replacement of five homes ($314,138), and rehabilitation and repair of five homes ($46,819). As part of the Eloise Redevelopment Plan, many additional infrastructure improvements have been proposed, such as fire hydrants, turnaround areas for emergency vehicles and fire trucks, storm water installation, and sewer for the Residential Area of Eloise between 1st and 9th Streets and between Snively Avenue and the canal. The proposed projects for water, sewer, and storm water include 350 parcels to be served in this Residential Area. The construction of the Eloise Community Center has been the most costly expense in these efforts. After the County obtained this parcel from Phoenix Industries, it was discovered that the land was contaminated and more than $400,000 was spent on environmental clean-up costs for this property. The ECRA and the County have made progress in the area of code enforcement. Furthermore, crime has been cut in half and a drinking ordinance was passed by the County upon request of the ECRA and the Eloise Neighborhood Association. Eloise, with the County's cooperation, also initiated a Community- Oriented Policing program. There has been an increase in construction in the area, both on the residential and commercial/industrial side of Snively Avenue. The ECRA has also been working on a beautification strategy. For example, Phoenix spent $35,000 for landscaping, removing barbed wire, installing an irrigation system, and installing an attractive entrance to its facilities. Further beautification is planned for other areas along Snively Avenue, the main gateway to the area from US 17, and improvements to Snively Elementary School, for which the ECRA allocated up to $10,000. Currently, the socio-economic status of the families living within the residential portion of the Redevelopment Area is low and moderate income. But, as noted above, the area is being revitalized, including the addition of several Habitat for Humanity-built homes. Mr. Bachman confirmed that "[t]hings have changed now," including the employment of minorities and an increase in diversity at the elementary school. The Subject Property The Subject Property is located within the Redevelopment Area on the southwest side of Snively Avenue between 5th and 6th Streets. JE 8A. The Subject Property consists of approximately 9.9 acres, which is part of a 20-acre parcel owned by Mr. Smith. Tr. 261. (There is a vacant parcel not subject to the Plan Amendment, also acquired by Mr. Smith at the same time, adjacent to and west of the Subject Property, which appears to be within a flood zone area. JE 8A at “46”. The canal serves as the western border for this parcel.) Currently, there are ten to eleven residences along 5th Street, north of the Subject Property, and ten residences between the Subject Property and 6th Street, south of the Subject Property. See EE 7. There does not appear to be any appreciable distance between these residences and the Subject Property. Aside from the residential homes north and south of the Subject Property, there are also retail, auto repair, and other commercial uses which border on Snively Avenue. See, e.g., IE 1, aerial with 15 photographs; JE 3 at 5 of 27; Tr. 295-297; JE 8A. According to Mr. Smith, he requested the land use designation change to cure the non-conforming status of the Subject Property. All operations on the Subject Property had ceased for less than one year when he purchased the Subject Property. The Subject Property has historically and, except as noted above, continuously been utilized since the late 1960’s for industrial-type purposes, including motor freight activities which include loading and unloading citrus trucks, racking, truck repair, and truck weighing. These activities would not necessarily be restricted to an Industrial land use designation;8 the current use of the Subject Property as a motor freight terminal is also permitted within a BPC-2 land use designation. There has been no substantial change in the use of the Subject Property since 1980.9 Mr. Brooks testified that while he was growing up in Eloise, the Subject Property "was primarily truck parking for the citrus plant." He "worked for the scale house back in the late 60's before the plant went down and all [they] did was like park the trucks there for unloading and which would be in the citrus plant itself." However, he never knew the Subject Property "to be an industrial park itself," during the late 1960's. Historically, Mr. Snively, who died in 1957, owned several different businesses across the street from the Subject Property, including a fresh fruit packing house, JE 8A at "20", juice plant, JE 8A at "21", concentrate plant, JE 8A at “22”. The plant closed in 1969 or 1970. In and around 1972, during the summer, Mr. Smith worked for the Snively operation when they parked their citrus trucks on the Subject Property and then for the Alterman operation on-site when he loaded and unloaded trucks. Under the County's zoning ordinance adopted in November 1970, the Subject Property, along with the Phoenix Industries Property, its adjoining property, and the property southeast and adjacent to Snively Elementary School, were zoned as General Industrial (GI). Like the Subject Property, this industrial area is located east and immediately adjacent to property classified as residential (RS) (although the property is presently undeveloped). By an amendment to the FLUM adopted by Ordinance No. 91-06 on April 19, 1991, the Subject Property was classified as RS, rather than IND.10 At the same time, the Phoenix Industries Property, its adjoining property, and the property immediately adjacent to Snively Elementary all maintained their Industrial classification. The May 2000 Eloise Redevelopment Plan recommended, in part, consideration of "a plan amendment from RS to RL-4 for the properties north of Snively [Elementary] School and west of Snively Avenue" which included the Subject Property. EE 2, Plan at 38. On July 11, 2001, the County adopted Ordinance No. 01- 45, which changed the land use designation on the FLUM from RS to RL-4, for all of the property (including the Subject Property) between 1st Street and just south of 9th Street and between Snively Avenue on the east and the canal on the west. EE 1 at map page 2. The land use designation for the Snively- Brooks Park was also changed to INST-1 from IND. Other land use designations were changed pursuant to Ordinance No. 01-45. EE 1. See also Tr. 130-136, 139-140. The FLUM changes implemented strategies set forth in the Eloise Redevelopment Plan and adopted recommended changes to the FLUM. See Tr. 163. The RL-4 designated property is located immediately adjacent to and on the north, west, and south sides of the Subject Property. JE 8A. Across Snively Avenue from the RL-4 property is the industrial area which was previously used in the citrus industry and which is currently used by Phoenix warehousing and trucking activities. JE 8A. "The purpose of the [RL-4] District is to provide areas for low density residential needs of residents in urban areas who desire areas with smaller lots, a minimum of 6,000 square feet." § 204A7., Land Development Code (LDC). The County and Mr. Smith contend that the Subject Property was mistakenly or erroneously classified as RS in 1991 and RL-4 in 2001. However, the preponderance of the evidence indicates that no mistake or error was made in 1991 or 2001 based, in part, on the chronology of events regarding the land use changes mentioned above. Merle H. Bishop, A.I.C.P., the current Director of Growth Management for the County, has been an employee of Polk County for 30 years, and was involved in the adoption of the original Comprehensive Plan in 1991. In preparing land use designations for the initial FLUM, he used aerial photographs primarily and the existing zoning at the time. Since that time, he and staff have discovered errors in mapping the land uses of property, including industrial. Typically, the errors have been corrected when presented to the Board for comprehensive plan changes to the FLUM. Mr. Bishop testified that pursuant to a policy in the Comprehensive Plan, the County desired to “recognize industrial uses.” Tr. 444-445. According to Mr. Bishop, an active industrial use would only be eliminated with good reason, i.e., such as it was a remote and isolated industrial use. Tr. 455. According to Mr. Bishop, the Subject Property, the southern parcel by the elementary school, and the Phoenix Industries property made up a major industrial use area. Tr. 456. Although Mr. Bishop stated the Subject Property "would have been" designated as Industrial in 1991 given its use, Tr. 511-512, Mr. Bishop could not "say whether or not [they] missed this on the map when [they] mapped it. I mean it appears -- I mean, when you look at the map, it's very general; or whether there was an intention to not map it." Tr. 483-484. Mr. Bishop did not testify persuasively that the Board, in 1991 or in 2001, erroneously designated the Subject Property as RS and then RL-4. The February 2, 2005, staff report, mentions the applicant’s contention that a mapping error occurred, but implicitly rejects this argument. JE 3 at 11 and 12 of 27. Staff stated: The site has recently changed ownership and the current property owner wants the non-conforming uses to become conforming uses. Recognizing the existing use will enable to [sic] owner to continue utilizing the site as it has historically been used and allow the redevelopment of the property as needed. In addition, the use has remained the same since the early 1970’s according to the applicant. The applicant also states that Policy 2.113-A2 of the Comprehensive Plan states that the [FLUM] Series shall include all major existing industrial areas; since the property has historically been used for industrial uses, the recognition of the site will correct the County’s mapping error. On the other hand, staff and the ECRA has [sic] indicated, for this and the prior requested land use change (CPA 04A-05), that the impacts to the residential neighborhood is [sic] more significant than the redevelopment of the site for commercial or industrial uses. The County worked with the residents, business owners, and land owners in the area to develop a redevelopment plan, in which, the site was intentionally made non-conforming by the community and the County in order to create separation between the industrial uses across the street from the residential uses on the west side of CR 655 (Rifle Range Road [sic]). Therefore, the applicant’s primary argument for recognizing the historical use is not relevant. JE 3 at 12 of 27. Mr. Bishop was not directly involved with the staff review although he participated at the pubic hearing before the Board. If the Subject Property were vacant, Mr. Bishop would not recommend an Industrial land use designation. He supports the land use change because of the existing (at the time) use of the Subject Property and to have the property be a conforming use. Tr. 506-507. The history of industrial-type use on both the Subject Property and other sites in the Redevelopment Area has been a subject of significant concern. Although no tests have been conducted to determine whether the Subject Property is contaminated, Dr. Cherry testified that as a result of its long industrial use, it is likely that contamination will be present, which would render its use for residential purposes not realistic. Tr. 221-223. Since the subject property is located near the property upon which the community center was constructed and both parcels were part of a larger industrial area and utilized for similar uses, Dr. Cherry suspects that the Subject Property will likewise be contaminated. Tr. 222. If the Subject Property is contaminated, it is Dr. Cherry's opinion that there will be insufficient funds to clean the area. Tr. 219. Consequently, Dr. Cherry opined that if the Subject Property could not be used for industrial purposes, it would likely be unable to be developed as residential and most likely would be abandoned, thereby becoming a “brownfield.” This would significantly burden the redevelopment efforts in the Redevelopment Area. However, the Subject Property has not been declared a “brownfield” and no finding can be made regarding the environmental condition of the Subject Property based upon the record of this case. The Small Scale Plan Amendment Application and Adoption On or about August 10, 2004, Mr. Smith filed an application requesting the County to re-designate the land use of the Subject Property from RL-4 to IND. JE 2. According to the “Narrative Summary,” “[t]his change will provide for the continuation of historical motor freight uses and provide for optional industrial uses.” Id. On January 4, 2005, the County published Notice in a newspaper of local circulation providing that the Board would consider the adoption of the Plan Amendment at its meeting of January 19, 2005. At the January 19, 2005, meeting, the County tabled consideration of the Plan Amendment to its meeting of February 2, 2005. The Polk County Planning Division Staff report is dated February 2, 2005. This report contains a detailed analysis of the application. The Planning Division recommended denial of the Plan Amendment. (The report indicates that the Planning Commission recommended approval (3 to 1 vote) of the Plan Amendment.) The Planning Division found, in part, that "the proposed development request IS NOT compatible with surrounding land uses and general character of the area of the residential uses on the southern side of Snively Avenue (CR 655) and IS NOT consistent with the Polk County Comprehensive Plan for a land use change to Industrial (IND) because it would likely intrude into the existing residential neighborhood, allow for more intensive uses to be developed next to existing homes, and not be consistent with the approved Eloise Redevelopment Plan." (Emphasis is original). On February 2, 2005, the Board voted to adopt the Plan Amendment by the adoption of Ordinance No. 05-004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order concluding that the Plan Amendment adopted by Polk County Ordinance No. 05-004 is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S 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 8th day of July, 2005.
The Issue The issue in this case is whether the land use designation placed on the property of intervenors is consistent with the goals, policies and objectives of the City of Jacksonville comprehensive plan.
Findings Of Fact Background This controversy involves a challenge to the City of Jacksonville 2010 Comprehensive Plan (Plan) by intervenors, Sybil L. Davis, Katherine T. Dekle, and Dr. James A. Acree, all residents and property owners in Duval County, Florida. The parties agree that intervenors are affected persons and thus have standing to pursue their claims. Intervenors contend generally that the land use designation given to their respective properties is inconsistent with other parts of the Plan and should be changed. If the requested relief is granted, intervenors would be able to develop their properties in a different manner than is now permitted under the Plan. The proposed Plan was first submitted by respondent, City of Jacksonville (City), to petitioner, Department of Community Affairs (DCA), on March 19, 1990. The DCA is the state land planning agency charged with the responsibility of reviewing comprehensive plans under Chapter 163, Florida Statutes. The City is a local government required to adopt a comprehensive plan pursuant to chapter 163. The proposed plan was the City's first attempt at meeting the compliance requirements established in that chapter. Under the law, the DCA is required to review all proposed plans for compliance with applicable statutes and rules. In that vein, besides its own in-house review, the DCA received comments from the Department of Environmental Protection and the Department of Transportation (DOT), considered such comments, and where appropriate, incorporated those views into its Objection, Recommendation and Comment Report (ORC) issued on July 10, 1990. The ORC contains the DCA's objections and comments concerning the Plan as well as recommendations which address those concerns. After considering the ORC, the City adopted a revised Plan on September 11, 1990, by Ordinance No. 90-794-380, which was then transmitted to the DCA. On November 9, 1990, the DCA issued its Statement of Intent to Find Comprehensive Plan Not in Compliance. After negotiations between the two parties, the City agreed to adopt remedial amendments to its Plan. This was accomplished by Ordinance No. 92-925-1405, effective January 22, 1993. Thereafter, on February 26, 1993, the DCA issued a Cumulative Notice of Intent to Find the Plan, as amended, in compliance with the law. As a consequence of this action, the interests of the City and DCA are aligned in this proceeding. Intervenors, however, consider the Plan to be internally inconsistent as to their respective properties and thus not in compliance with the law. It should be noted that during the local hearing process before the City, intervenors' requests to have their land use designation changed were denied. The Davis-Dekle Property Both Davis and Dekle own property which fronts on Southside Boulevard, a major arterial highway that runs in a north-south direction for ten to fifteen miles between Atlantic and Beach Boulevards. It consists of two northbound lanes, a divider (grass) median, and two southbound lanes. In addition, a twenty-foot service road runs along the outside of each roadway and is separated from the main roadway by a grass median. The highway right-of-way is 200 feet wide. This right-of-way has existed since at least the 1940's while the service roads were built in the 1950's. Davis owns two parcels of property on Southside Boulevard, also known as State Road 115. The first parcel, which is located at 2351 Southside Boulevard, is a vacant lot measuring 100 feet wide by 200 feet deep. The lot was purchased in 1987 with the intention of eventually converting the property to commerical use. A year later, Davis purchased a 1,000 square foot home located at 2615 Southside Boulevard. The house sits on a lot measuring approximately 85 feet wide by 200 feet deep. Although she currently resides in the home, Davis also intends to convert this property to commercial use if her appeal is successful. Both lots sit on the east side of Southside Boulevard between Atlantic and Beach Boulevards. Dekle's property is located at 2710 Southside Boulevard and lies on the west side of the street between Atlantic and Beach Boulevards. Dekle purchased the property in 1947 and has lived there for almost thirty years. The lot measures approximately 100 feet wide by 208 feet deep. Intervenors' properties are located in what is known as Southside Estates, a subdivision developed soon after World War II. The neighborhood surrounding their property is residential. Indeed, some 115 single-family homes are located on Southside Boulevard. Thus, the area historically has been a residential area since the 1940's and the predominant land uses along both sides of Southside Boulevard are single-family residences. Under the Plan, intervenors' properties are included in an area designated as "Low Density Residential," and thus this designation would bar intervenors from converting their properties to commercial use. "Low Residential Density" is defined in the future land use element of the Plan as follows: This category permits housing developments in a gross density range of up to seven (7) dwelling units per acre when full urban services are available to the site. Generally, single family detached housing will be the predominant land use in this category, although mobile homes, patio homes and multi-family dwellings shall also be permitted in appropriate locations. Minimum lot size shall be half acre per dwelling unit when both centralized potable water as well as wastewater are not available. The lot size shall be reduced to 1/4 acre per dwelling unit if either one of these services are not available. As noted above, intervenors' properties lie on Southside Boulevard between Atlantic and Beach Boulevards. The distance between these two latter roadways is approximately two miles. There is a major node of commercial development at the intersection of Southside and Atlantic Boulevards and a smaller commercial node at the intersection of Southside and Beach Boulevards. These uses, which extend approximately one-third of the distance between Atlantic and Beach Boulevards, are predominately offices, with the exception of more intense commercial uses near the intersection with Atlantic Boulevard. The southernmost extent of the commercial uses is approximately six or seven blocks north of the Dekle property. Intervenors complain that because of heavy traffic found on Southside Boulevard during the weekdays, their property should not carry a low residential density classification. More specifically, between 2:00 p. m. and 6:00 p. m. weekday afternoons, traffic backs up for more than a mile on the southbound lanes of Southside Boulevard between Atlantic and Beach Boulevards while there is a similar traffic backup in the northbound lanes during morning rush hours. This is confirmed by the fact that the roadway is functioning at a level of service "F," which means arterial flow is at "extremely slow speeds" and "intersection congestion" is likely at critical signalized locations. The DOT considers the minimum acceptable level of service to be level of service "D." Traffic counts, measured in average daily trips, are projected to reach 40,871 by 1995 at a point on Southside Boulevard 100 feet south of Atlantic Boulevard and 51,089 by the year 2010. Intervenors agree, however, that the service roads, on which their properties front, flow smoothly and are lightly traveled. Because intervenors' homes are located at the front of their lots closest to the service roads, they experience vehicle noise which affects their ability to watch television, sleep or carry on other normal activities unless windows and doors are closed at all times. Odors and fumes generated by the nearby traffic also require that windows and doors be shut at all times. Unless they retreat to the rear of their lots while outside their homes, they cannot escape the traffic fumes. In view of the foregoing condition, intervenors contend that a change in land use designation from low density residential to commercial is appropriate. "Commercial" is described in the future land use element of the Plan as follows: This category is intended to provide for all types of sales and services activities, such as retail trade, personal and professional services and storage, offices, hotels, motels, entertainment, and amusement facilities. Commercial recreation and entertainment activities, such as amusement parks and marinas, are also allowed in this category. Multi-family uses, when developed as part of an integrated mixes use project, are also permitted consistent with the Medium Density Residential (MDR) and High Density Residential (HDR) plan category description. The Plan includes five types of commercially dominated land use categories: residential-professional-institutional, neighborhood commerical, community/general commercial, regional commercial, and central business district. The primary uses range from a small convenience store, laundry/dry cleaning shop to a large shopping center or a multi-story office building. In considering intervenors' request to change the proposed land use to commercial, the City looked at the Greater Arlington Plan (an earlier land use plan completed in 1985), the existing use of the land, and the existing zoning. It also considered the general character of the area and the fact that most homes were graded in an "A" condition and were structurally sound. It should be noted here that the DCA did not raise any concerns over the proposed land use classification in its ORC report, nor has it subsequently posed any objection. In determining the appropriate land use classification for intervenors' properties, the Plan is the primary document to be used to guide the City's future growth and development. The future land use and housing elements of the Plan contain goals, objectives and policies which bear directly on this issue. More specifically, the following goals, objectives and policies found in the future land use and housing elements of the Plan support the classification given to intervenors' properties: Future Land Use Element GOAL 1 To ensure that the character and location of land uses optimize the combined potentials for economic benefit and enjoyment and protection of natural resources, while minimizing the threat to health, safety and welfare posed by hazards, nuisances, incompatible land uses and environmental degradation. Objective 1.1 Ensure that the type, rate, and distribution of growth in the City results in compact and compatible land use pattern, an increasingly efficient urban service delivery system and discourages proliferation of urban sprawl through implementation of regulatory programs, intergovernmental coordination mechanisms, and public/private coordination. Policy 1.1.1 The City shall ensure that all new development and redevelopment after the effective date of the 2010 Comprehensive Plan is consistent with the Future Land Use Map series, and textual provisions of this and other elements of the 2010 Comprehensive Plan, as provided in Chapter 163 (Part II), F.S. 1.1.8 By April 1, 1991, require that all new non-residential projects be developed either in nodal areas, in appropriate commercial infill locations, or as part of mixed or multi-use developments, as described in this element. GOAL 2 To enhance and preserve for future generations geographic areas with unique economic, social, historic or natural resource significance to the City. GOAL 3 To achieve a well balanced and organized combination of residential, non-residential, recreational and public uses served by a convenient and efficient transportation network, while protecting and preserving the fabric and character of the City's neighborhoods and enhancing the viability of non-residential areas. Issue: Residential Development Patterns The neighborhood is the functional unit of residential development. There is a need to protect existing, viable neighborhood units and the neighborhoods that will emerge in the future. However, much newer residential development occurs as enclaves, with little or no functional linkage to surrounding areas. Unplanned low density development has become a familiar land use pattern in Jacksonville as new subdivisions have been developed further and further out, away from the existing urban area. * * * Objective 3.1 Continue to maintain adequate land designated for residential uses which can accommodate the projected population and provide safe, decent, sanitary and affordable housing opportunities for the citizens. Protect single-family residential neighborhoods by requiring that any other land uses within single-family areas meet all applicable locational criteria of the 2010 Comprehensive Plan and subsequent Land Development Regulations. Policies 3.1.2 The City shall eliminate incompatible land uses or blighting influences from potentially stable, viable residential neighborhoods through active code enforcement and other regulatory measures. * * * 3.1.7 The City shall give high priority consideration to the provision of affordable housing in land development and funding decisions, especially those made relating to public/private cooperative efforts in which the City is participating. * * * Issue: Commerical and Industrial Development Patterns * * * Despite a significant increase in the number of planned centers approved in recent years, little change has occurred in the pattern of strip commerical uses lining the City's arterial and collector roadways. This development pattern is typically inefficient, unsafe, and aesthetically unattractive. It results in multiple curb cuts, sometimes up to 50 per mile, thereby reducing the traffic carrying capacity of highways while at the same time increasing the potential for accidents. With a clutter of signs of all sizes, shapes, color, and design, the appearance of these areas is not only unsightly, it is also distractive for traffic on the highway and can, therefore, be dangerous. Another problem relating to strip commercial uses has developed as the commercial market has begun to overbuild during the recent national economic expansion cycle. Commercial retail and office space has remained in an over-supply condition (indicated by vacancy rates over 15 percent) for the past several years,, and as a result, new space has come on line at square footage costs that create strong competition with existing space. This competitive market results in relocations of existing businesses to newer projects, leaving many older commercial buildings semi-vacant and with little investment benefit to the owners. Without the hope of a reasonable economic return, owners may not invest funds to maintain their structures, and inevitably, commercial blight begins to develop. For these reasons, new commercial development will be strongly encouraged to occur in nodes or clusters in the form of office parks, shopping centers and mixed use developments. Strip commercial expansion along arterial streets will be discouraged, except for commercial infill of uses such as hotels, motels, restaurants, auto sales and service, mobile home sales, convenience stores and gas stations, which shall continue to locate along highways. * * * Policies The City shall promote, through the use of development incentives and other regulatory measures, development of commercial and light/service industrial uses in the form of nodes, centers or parks, while discouraging strip commercial development patterns, in order to limit the number of curb cuts and reduce conflicts in land uses, particularly along collectors and arterials. The City shall promote, through the Land Development Regulations, infill and redevelopment of existing commercial areas in lieu of permitting new areas to commercialize. * * * The City shall permit expansion of commercial uses adjacent to residential areas only if such expansion maintains the residential character of and precludes non- residential traffic into adjacent neighborhoods. The City shall require neighborhood commercial uses to be located in nodes at the intersections of collector and arterial roads. Prohibit the location of neighborhood commercial uses interior to residential neighborhoods in a manner that will encourage the use of local streets for non-residential traffic. The City shall implement the locational criteria of this element for commercial and industrial uses consistent with the character of the areas served, availability of public facilities, and market demands. * * * Housing Element GOAL 1 The City shall develop stable and definable neighborhoods which offer sale, sound, sanitary housing that is affordable to all its present and future residents. Issue: Neighborhood Stabilization Urban housing is a function of neighborhood. Stable neighborhoods encourage residents to maintain, upgrade, build and buy housing resulting in a sound, diverse housing stock. * * * There is an inadequate number of organizations committed to the revitalization and cohesiveness of Jacksonville's neighborhoods. Preservation is relatively easy and inexpensive compared to redevelopment and will prevent widespread blight and deterioration in convenient residential locations close to transportation, schools, shopping and medical facilities. * * * Objective 1.4 Preserve, protect, and stabilize residential neighborhoods keeping the maximum number of dwelling units in the housing supply, as measured by the implementation of the following policies. * * * Policy * * * 1.4.5 Commercial and other non-residential uses lying adjacent to residential neighborhoods should not be expanded into residential neighborhoods unless: Such uses enhance or do not diminish or degrade the residential character of the neighborhood, and The expansion shall not result in a reduction of the level of service on the residential streets; * * * One of the overriding policies contained in the Plan was a desire to maintain the City's vibrant neighborhoods. The future land use element addressed those concerns by discouraging strip commercial development and promoting instead the development of commercial land uses at major intersectional nodes. Strip commercial development often has a "cancerous" effect on nearby residential land uses. Problems associated with strip commercial development include encroachment on adjacent residential neighborhoods, increased noise and traffic in residential areas, undesirable aesthetic appearances, and inefficient traffic flow along the roadways on which strip commercial development occurs. The Southside Estates subdivision is vulnerable to encroachment because of the grid pattern of streets, which increases the likelihood of non- residential traffic passing through the subdivision. If lots facing Southside Boulevard were converted to commercial land uses, traffic would likely increase on the neighborhood streets. The neighborhood is a stable neighborhood with a large inventory of homes in good condition. The current noise and traffic along Southside Boulevard has not impaired the neighborhood stability, as the character and condition of homes along Southside Boulevard is comparable with that in the interior of the neighborhood. The residential area in question constitutes an "established neighborhood" as that term is defined in the Plan. There, the term is defined as follows: A neighborhood where platted, or otherwise divided, land has been at least eighty percent developed and occupied without substantial deterioration since such development. The residential area surrounding intervenors properties provides a significant supply of affordable housing to both home buyers and renters. Preservation of that housing stock is preferable to development of additional housing elsewhere. Therefore, maintenance of this neighborhood for residential use supports the housing element of the Plan. As noted earlier, Southside Boulevard is classified as a principal arterial roadway in the Plan. It currently serves as a major north-south roadway. The State has planned and partially constructed State Road 9A, a limited access facility located to the east of Southside Boulevard. When completed, State Road 9A will be the eastern circumferential link to Interstate 95 north and south of the City. State Road 9A will accommodate some of the through traffic currently using Southside Boulevard and will reduce the volume of truck traffic on Southside Boulevard. Contrary to intevenors assertion, conversion of residential properties along this portion of Southside Boulevard would result in increased traffic along the main roadway as well as the service roads. It would also result in an increased number of vehicles entering onto Southside Boulevard. This would further exacerbate an already unacceptable level of service along that road. Southside Boulevard is not a limited access facility as defined in the future land use element of the Plan. Therefore, policy 3.1.12 within that element, which permits residential land use designations adjacent to limited access highways when the negative impact of the roadway can be mitigated, is not applicable. Policy 3.2.2 of the future land use element provides as follows: The City shall promote, through the Land Development Regulations, infill and redevelopment of existing commercial areas in lieu of permitting new areas to commercialize. "Infill development" is defined in the future land use element definitions as "development on scattered vacant sites within the urbanized/suburbanized area of the community." "Commercial infill" is defined as "commercial development of the same type and grade as adjacent commercial uses that is sited between those uses in existing strip commerical areas." Reclassification of this part of Southside Boulevard to a commercial land use would not consitute commercial infill development, as such development would not be occurring on scattered sites or vacant sites, nor are the adjacent uses commercial ones. The area in question cannot be considered a "blighted area" as that term is defined in the future land use element of the Plan. Policy 1.3.1 of the future land use element directs that the City require all non-residential development located along a designated major arterial to construct a service drive which connects to the service drive of adjacent properties, unless otherwise approved by the city traffic engineer. Such a service drive does not exist along this portion of Southside Boulevard. However, the same policy does not require that all property fronting a service drive be classified for commerical use. Further, in the event such service roads are provided in new locations, the policy does not require such roads to be constructed at City expense. Reclassification of intervenors' properties to commercial uses would constitute an expansion of commercial uses adjacent to residential areas. Policy 3.2.4 of the future land use element permits such expansion only if it maintains the residential character of and precludes non-residential traffic into adjacent neighborhoods. Establishment of commercial uses on the property would be a negative influence which would begin the erosion and decay of the surrounding neighborhood. Because of the street grid pattern, it would be difficult, if not impossible, to preclude non-residential traffic from utilizing streets in the adjacent neighborhood. Table L19 of the future land use element is a land use acreage allocation analysis. That table depicts the existing acreage for certain land use categories, the projected acreage needs for those categories to the year 2010, and the acreage allocated to those needs on the future land use map series. The amount of acreage allocated to commerical land use categories is 185.90 percent of the projected need while the acreage allocated to residential land use categories is 127.99 percent of the projected need. Therefore, the land use classifications found on the map series result in a greater overutilization of commercial land use acreage than that found with respect to residential land use acreage. The City's classification of intervenors' properties is similar to that along comparable areas elsewhere in the City. For example, State Road 13 (San Jose Boulevard/Hendricks Avenue) north from Baymeadows Road is characterized by predominately single family residential land uses interrupted by several nodes of commercial development. Like Southside Boulevard, San Jose Boulevard is a four-lane roadway carrying comparable volumes of traffic. This portion of San Jose Boulevard contains a parking lane, but it does not have parallel service roads and the overall width of the right-of-way is narrower than that found on Southside Boulevard. Therefore, homes along this portion of San Jose Boulevard are generally located as close to the right-of-way as those along Southside Boulevard and are closer to the traffic lanes themselves. Traffic counts are comparable, but projections for State Road 13 are as high as 78,426 by the year 2010. Despite this traffic, this area remains a viable, stable residential area. In summary, then, intervenors' properties should be classified as low residential density. This classification is consistent with and supported by the Plan's goals, objectives and policies. Therefore, intervenors' properties should not be reclassified as commercial. The Acree Property Intervenor Acree and his brother, who are both licensed veterinarians, own approximately 460 acres in the northwest portion of the county located on Acree Road (formerly Thomas Road). Of that amount, 360 acres were purchased in 1956 when the brothers started a wholesale dairy as an investment. Three adjoining parcels totaling 116 acres were later purchased as the dairy operation expanded. In 1989, the dairy animals were sold and Acree planned to sell the farm and retire. At that time, he hired civil engineers to develop a conceptual site plan for the purpose of ascertaining the value of his land for development under existing zoning regulatioins. Since the Plan changes his classification and impacts his ability to develop the property, Acree has brought this appeal for the purpose of challenging the land use classification given to his property. The Acree property is designated "agricultural" under the Plan. The allowable densities in an agricultural land use category are contained in the plan category descriptions of the future land use element and provide as follows: One dwelling unit (D.U.) per 100 acres of land for lots of record of 640 acres (section) or more in size at the time of adoption of the 2010 Comprehensive Plan; One dwelling unit (D.U.) per 40 acres of land area for lots of record of 160 acres (1/4 section) up to but not including 640 acres (section) in size at the time of adoption of the 2010 Comprehensive Plan; One dwelling unit (D.U.) per 10 acres of land area for lots of record of 40 acres and up to but not including 160 acres at the time of adoption of the 2010 Comprehensive Plan. One dwelling unit (D.U.) per 2.5 acres of land for single lots of record or the combination of contiguous lots of record under common ownership up to but not including 40 acres which were existing on September 21, 1990. In the event such land area equals 40 acres or more, the allowable number of dwelling units shall be determined according to paragraph (iii) above. Notwithstanding this requirement, one dwelling unit shall be permitted on any nonconforming lot of record which was existing on September 12, 1990. Development on such nonconforming lots of record shall be subject to all other plan provisions. By his petition, Acree seeks to have his property classified as rural residential. This classification is defined in the plan category descriptions of the future land use element as follows: This category is intended to provide rural estate residential opportunities in the suburban area of the City. Housing development at a net density range of up to two (2) dwelling units per acre will be allowed when community scale potable water and sewer facilities are available to the site, and one (1) unit per net acre when the site will be served with on-site water and wastewater facilities. Generally, single- family detached housing and mobile homes will be the predominant land uses in this category. In addition, agriculture, silviculture, and similar other uses may be permitted as secondary uses subject to the standards and criteria in the Land Development Regulations. If the petition is approved, Acree would be allowed to develop his property with a much higher density, and the value of the land would increase correspondingly. Prior to the adoption of the plan, Acree's property was zoned OR (agriculture). Under then-existing regulations, a residential density of one dwelling unit per acre of land was authorized. All other rural land in the county could be utilized for residences in one and one-half acre minimum size lots. This compares with current restrictions described in finding of fact 31. Acree's property is 3 miles by roadway (but only 2.4 linear miles) from the nearest available water and sewer utilities. The property is 1.5 miles from the nearest property classified as rural residential on the future land use maps. Presently, the farm is surrounded by timberland. In originally finding the City's Plan not in compliance, the DCA's concerns included the plan's projections of agriculture land use, its vested development rights, and urban sprawl considerations. As a consequence, in developing the Plan, one of the factors considered by the City was the discouragement of urban sprawl. That term is defined in the future land use element of the Plan as follows: A terminology commonly used to describe certain kinds of growth and development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas without provisions for utilities and services. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) strip or ribbon development; and (3) large expanses of low-density, single- dimensional developments. This corresponds to the description given the term by the DCA in a technical memorandum issued by the DCA in 1989. The future land use element of the Plan contains the following objective and policies to discourage urban sprawl: Objective 1.1 Ensure that the type, rate and distribution of growth in the City result in compact and compatible land use patterns, an increasingly efficient urban service delivery system and discourages proliferation of urban sprawl through implementation of regulatory programs, intergovernmental coordination mechanisms, and public/private coordination. Policies * * * 1.1.16 Prohibit scattered, unplanned urban sprawl development without provisions for facilities and services at levels adopted in the 2010 Comprehensive Plan in locations inconsistent with the overall concepts of the Future Land Use Element. * * * 1.1.18 Limit urban scale development to the Urban and Suburban areas of the City, as identified in the 2010 Comprehensive Plan, in order to prevent urban sprawl, protect agriculture lands, conserve natural open space, and to minimize the cost of public facilities and services, except for urban villages and other large scale mixed use developments which are designed to provide for the internal capture of daily trips for work, shopping and recreational activities. * * * 1.1.20 Future development orders, development permits and plan amendments shall maintain compact and compatible land use patterns, maintain an increasingly efficient urban service delivery system, and discourage urban sprawl. * * * In addition, leapfrog development is defined in the future land use element as follows: An urbanizing growth pattern which occurs when new land development is sited away from existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas. To discourage urban sprawl, the City has incorporated into its Plan a provision dealing with public facilities. This provision, which is found in the capital improvements element, establishes areas in which the City would provide public services during the time frame of the Plan. They include the "urban area," where urban services already exist or are programmed to be provided within a short time; the "suburban fiscal commitment area" where services such as water and sewer are in place or planned to be installed within five years; the "suburban non-fiscal commitment area," which is that portion of suburban area in which the City does not commit to providing water and sewer services witin the next five years; and the "rural area," which is predominately undeveloped and unplatted and comprises those areas not intended to be developed by the year 2010. Acree's property is located in the rural area as depicted in the capitol improvement element of the Plan. The sanitary sewer sub-element of the public utilities element of the Plan is also relevant to this issue. It provides in part as follows: Goal 1 The City shall provide for economically and environmentally sound wastewater collection and treatment systems which . . . promote beneficial land use and growth patterns and . . . discourage urban sprawl. Objective 1.1 In order to discourage urban sprawl and correct existing deficiencies, the City shall provide regional wastewater facilities in concert and conformance with the Public Facilities Map as adopted in the Capital Improvement Element. Policies * * * 1.1.5 The City shall not invest in sanitary sewer facilities in the Rural area as defined in the Future Land Use and Capital Improvements Elements, except where necessary to protect the public health and safety. The potable water sub-element of the public utilities element of the Plan contains comparable objectives and policies with regard to providing regional water facilities. The above provisions do not prevent a developer from paying the cost to extend such services to his property. Any facilities installed by the developer, however, must be maintained by the City after such facilities are turned over to the City by the developer. The plan category descriptions found in the Plan for agriculture land uses established a hierarchy based upon the size of the lot of record. The intent of the varying densities is to provide flexibility to owners of smaller lots of record while encouraging large land owners to maintain agricultural land uses, rather than converting to residential development. By law, certain development approved prior to the adoption of the Plan has vested rights. Local governments have included vesting language in their comprehensive plans. Some governments have elaborated upon vesting language to allow exceptions based upon density. The language regarding densities in agriculture land uses found in the Plan is similar to language found in other local government plans. Most plans with density exception language also contain provisions combining contiguous lots of record under common ownership. The density provisions found in the Plan do not make it inconsistent with Chapter 163, Florida Statutes, the DCA's rules, or the state comprehensive plan. At its closest point, Acree's property lies just 400 feet from the Nassau County line. He established that most of the land in Nassau County just north of the Duval County line, and just a short distance from his own, can now be developed at a residential density of one dwelling unit per acre while some can be developed at a residential density of one dwelling unit per one-half acre. He also established that all agriculture land in Nassau County can be developed with a residential density of one dwelling unit per twenty acres for tracts of 320 acres and greater regardless of the amount of land in single or contiguous ownership. However, there is nothing in chapter 163 or the agency's rules which require adjacent land uses in adjoining counties to be identical. Put another way, decisions made in Nassau County with respect to its comprehensive plan are not binding on Duval County. Therefore, the City was not required to classify Acree's property as rural residential merely because an adjoining county had classified nearby land in that manner. Redesignation of Acree's property from agriculture to rural residential would not constitute "infill" development. This is because of the property's distance from other urban development in the county and distance from existing water and sewer servcies. Given the location of Acree's property, reclassification to rural residential land would constitute leap frog development and promote urban sprawl as those terms are defined in the Plan. This is true even though nearby land in Nassau County is considered urban sprawl by City planning officials. Finally, preservation of agriculture land uses is a state concern, especially in areas not projected to be served by water and sewer services. Testimony established that there are several areas in Duval County classified as rural residential which constitute urban sprawl. With the exception of one such area, however, all areas reflect existing residential developments already in place. Table L19 of the future land use element of the Plan is a land use acreage allocation analysis which depicts the existing acreage for certain land use categories, the projected acreage needs for those categories to the year 2010, and the acreage allocated to those needs on the future land use map series. Table L19 indicates that the amount of the acreage allocated to the rural residential land use category is already 194.94 percent of the projected need. In summary, then, in order for the Plan to be internally consistent, Acree's property should be classified as agriculture. This will ensure that development occurs in a compact pattern, which is more cost efficient and compatible with the requirements of the Plan. Therefore, the property should not be reclassified as rural residential since this would be contrary to the goals, objectives and policies within 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 finding the City's Plan to be in compliance with the law. DONE AND ENTERED this 24th day of January, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7496GM Petitioners Davis and Dekle: Partially accepted in finding of fact 1. Partially accepted in finding of fact 4. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. 7-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 8. 10-11. Partially accepted in finding of fact 10. 12-13. Partially accepted in finding of fact 11. Petitioner Acree: Partially accepted in finding of fact 30. Rejected as being irrelevant. 3-4. Rejected as being a conclusion of law. 5. Partially accepted in finding of fact 35. 6-7. Rejected as being irrelevant. See finding of fact 42. 8. Partially accepted in findings of fact 35 and 44. 9. Partially accepted in finding of fact 42. 10. Partially accepted in finding of fact 33. 11. Partially accepted in finding of fact 30. 12. Partially accepted in finding of fact 42. 13. Partially accepted in findings of fact 31 and 41. 14. Partially accepted in findings of fact 32 and 42. 15. Partially accepted in findings of fact 35 and 43. DCA and the City: 1-2. Partially accepted in finding of fact 1. 3-5. Partially accepted in finding of fact 2. 6-7. Partially accepted in finding of fact 3. 8-10. Partially accepted in finding of fact 4. 11. Partially accepted in finding of fact 7. 12. Partially accepted in finding of fact 6. 13. Partially accepted in finding of fact 5. 14. Partially accepted in finding of fact 8. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17. Partially accepted in finding of fact 11. 18-19. Partially accepted in finding of fact 8. 20-21. Partially accepted in finding of fact 4. 22-24. Partially accepted in finding of fact 13. 25. Partially accepted in finding of fact 14. 26. Partially accepted in finding of fact 8. 27-28. Partially accepted in finding of fact 12. 29. Partially accepted in finding of fact 14. 30. Partially accepted in finding of fact 15. 31. Partially accepted in finding of fact 16. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 18. 34. Partially accepted in finding of fact 19. 35. Partially accepted in finding of fact 10. 36. Partially accepted in finding of fact 20. 37. Partially accepted in finding of fact 10. 38. Partially accepted in finding of fact 21. 39. Partially accepted in finding of fact 22. 40. Partially accepted in finding of fact 23. 41. Partially accepted in finding of fact 24. 42. Partially accepted in finding of fact 25. 43. Partially accepted in finding of fact 26. 44. Partially accepted in finding of fact 27. 45. Partially accepted in finding of fact 28. 46. Partially accepted in findings of fact 30 and 42. 47. Partially accepted in finding of fact 31. 48. Partially accepted in finding of fact 34. 49. Partially accepted in finding of fact 32. 50. Partially accepted in finding of fact 42. 51-53. Partially accepted in finding of fact 35. 54. Partially accepted in finding of fact 37. 55-56. Partially accepted in finding of fact 38. 57. Partially accepted in finding of fact 39. 58. Partially accepted in finding of fact 46. 59-60. Partially accepted in finding of fact 36. 61. Partially accepted in finding of fact 42. 62. Partially accepted in finding of fact 43. 63. Partially accepted in finding of fact 42. 64. Partially accepted in finding of fact 43. 65. Partially accepted in finding of fact 41. 66. Partially accepted in finding of fact 45. 67. Partially accepted in finding of fact 44. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Katherine A. Castor, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Michael A. Altes, Esquire 200 West Forsyth Street, Suite 1100 Jacksonville, Florida 32202-4308 James A. Acree 5031 Dianwood Drive East Jacksonville, Florida 32210 Tracey I. Arpen, Jr., Esquire 1300 City Hall 220 East Bay Street Jacksonville, Florida 32202
Findings Of Fact The Parties. Petitioner, the Environmental Coalition of Broward County, Inc. (hereinafter referred to as the "Coalition"), is a Florida corporation. The Coalition has offices located in Broward County. The Coalition has approximately 500 members, most of whom reside in Broward County. A substantial number of the Coalition's members own property in Broward County and/or operate businesses within Broward County. The Coalition is a not-for-profit corporation, chartered for educational and scientific purposes. The primary purpose of the Coalition is to present objections and recommendations to local governments concerning planning issues on behalf of its membership. The Coalition is authorized to participate in actions of this type and to represent its membership in administrative proceedings. The Coalition presented oral and written objections to Broward County during the review and adoption process concerning the plan amendment at issue in this proceeding. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is the state agency charged with the responsibility of implementing the Local Government Comprehensive Planning and Land Development Act, Chapter 163, Part II, Florida Statutes (hereinafter referred to as the "Act"). Among other things, the Department is required to review local government comprehensive plans and amendments thereto for compliance with the Act. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government with the authority pursuant to the Act and the Broward County Charter to adopt and amend a comprehensive plan. The County has adopted the 1989 Broward County Comprehensive Plan (hereinafter referred to as the "Plan"). The Broward County Board of County Commissioners (hereinafter referred to as the "County Commission"), is the local planning agency for the County. The County Commission is advised on land use planning issues by the Broward County Planning Council (hereinafter referred to as the "Planning Council"). The Planning Council was created by the County Charter. Intervenors, Miramar Lakes, Inc., d/b/a Miramar Rock, Robert A. Whitcombe, Trustee, and the South Broward Trust own or have under contract virtually all of the property affected by the Plan amendment which is the subject of this proceeding. These Intervenors have entered into a joint venture agreement with Intervenor Atlantic Gulf Communities Corporation to develop the subject property. Intervenors applied for the amendment that is the subject of this proceeding and presented oral or written comments, recommendations and objections during the period of time between the transmittal hearing and adoption of the subject Plan amendment. The County's Plan. The County adopted a comprehensive plan as required by the Act in 1989. The planning horizon of the plan is 2010. The Plan includes two volumes of text, two volumes of support documents and associated maps. See Petitioner's exhibit 8. Volume One is text and is effective countywide. Volume Three contains support documents for the Plan. The Plan also includes the 1989 Broward County Future Land Use Plan Map (Series) (hereinafter referred to as the "FLUM"). The FLUM depicts the proposed distribution, extent and location of categories of land uses allowed under the Plan. Among others, those land uses include "residential" at various densities and "agricultural". Pursuant to the Plan, the eastern approximately one-third of the County may be developed. The developable area consists of approximately 400 square miles of land area. The western approximately two-thirds of the County are designated as water conservation areas and are separated by a levee from the developable one- third. Future land use elements of municipal comprehensive plans in the County must be in substantial conformity to the Plan. The Subject Property. The property which is the subject of the Plan amendment at issue in this case consists of 1,280 acres of a total of 1,965 acres (hereinafter referred to as the "Property"). The Property is located in the City of Miramar, in southwest Broward County, Florida, Sections 25, 26, 27 and 36, Township 51 South, Range 39 East. The Property is located in the southwestern portion of the developable one-third of the County. See Map 1 of Broward County exhibit 1. The Property is bounded on the east by S.W. 184th Avenue and on the north by Honey Hill Road. It is east of U.S. Highway 27. Part of the Property is vacant. Part of the Property is being used as cattle pasture and for a rock mining, batching, mixing and crushing operation. Existing land uses in the vicinity of the Property include vacant land, rock mining and some development to the north, single-family residential development to the east, rock mining and vacant land to the south, in Dade County, Florida. Residential development immediately to the east in a development known as "Silverlakes" is being developed at a density of three dwelling units per acre. Further to the west of the Property is the eastern boundary of the water conservation areas of the Everglades. These areas are separated from the rest of Broward County by a levee. The land use designation of the Property and other property in the surrounding area is "agricultural". Under the Plan, the land use designation allows agricultural uses and residential development of one dwelling per 2.5 acres. Under its current land use designation, a total of 786 dwelling units may be developed on the Property. The First Amendment Requested by the Intervenors. In early 1994 Intervenors filed an application with the County seeking an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Low (2) Residential". "Low (2) Residential" allows the development of two dwelling units per acre. The Planning Council conducted a review of the proposed amendment. The Broward County Department of Natural Resource Protection raised objections to the proposed amendment because the Property is located in an area of water recharge and wetlands. The area is identified as within a general wetlands area on the "Southwestern Generalized Wetlands Map" of the Plan. 30 Based upon the objections of the County Department of Natural Resource Protection, the staff of the Planning Council recommended denial of the proposed amendment. The South Florida Water Management District (hereinafter referred to as the "SFWMD"), an agency with broad regional responsibility for water management in southeast Florida, raised objections with the Planning Council concerning the location of the property in an area which was being considered for use as part of a project to restore the Everglades. The SFWMD was concerned that the Property is located within an area which has come to be known as the "East Coast Buffer". In early 1994, at the time of the initial review of the proposed amendment, the East Coast Buffer was a study area abutting the eastern water conservation areas of southeast Florida. The SFWMD was studying the East Coast Buffer for use in water conservation efforts in southeast Florida. At the time of the first review of the proposed amendment, the portion of the East Coast Buffer in which the Property is located was being considered for preservation as a reservoir site. The Planning Council transmitted the proposed amendment to the County Commission without recommendation. The County Commission decided not to transmit the proposed amendment to the Department for its review, ending review of the initial application. The Initial Review of the Subject Amendment. A second application on the Property was resubmitted by the Intervenors in March of 1994. The application was designated Application PC 94- 15. Application PC 94-15 sought an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Irregular 1.5 Residential". "Irregular 1.5 Residential" allows 1.5 dwelling units per acre. The amendment sought by Intervenors would have allowed an increase from 786 dwelling units to 2,947 dwelling units on the Property. An increase of 2,161 units. Application PC 94-15 was again reviewed. The same comments about, and objections to, the proposed amendment were raised concerning groundwater and aquifer recharge. The staff of the Planning Council again recommended denial of the proposed amendment. 41 The Planning Council recommended transmittal of the application, subject to the Intervenors satisfying the concerns raised by the SFWMD. On August 17, 1994, the County Commission transmitted Application PC 94-15 to the Department, conditioned upon the Intervenors satisfying the concerns of the SFWMD. The SFWMD objected to Application PC 94-15 because of its conclusion that the proposed future land use designation was not compatible with the East Coast Buffer then under evaluation by the SFWMD. SFWMD had developed data and conducted computer modeling concerning the utilization of a buffer for a variety of purposes, including reducing seepage of water from the Everglades, increasing groundwater recharge into aquifers and creating a natural buffer to protect the Everglades from the impacts of development. The SFWMD had commissioned a worldwide engineering firm, CH2M Hill to prepare a report on the East Coast Buffer. The SFWMD recommended that Application PC 94-15 not be approved until it had completed its study of the East Coast Buffer because the land use designation being sought might be incompatible with the conclusions reached from the SFWMD's and CH2M Hill's evaluation. The Department reviewed Application PC 94-15 and, based upon comments from the SFWMD similar to those raised before the County Commission, issued an Objections, Recommendations and Comments report concerning Application PC 94-15. The Department raised objections consistent with the adverse comments from the SFWMD. Modification of the Proposed Amendment. Parts of southwestern Broward County and northwestern Dade County were designated "Management Unit 5" by the SFWMD. Management Unit 5 was being considered, as recommended by CH2M Hill, as a reservoir area. Development of the Property was, therefore, not considered to be a use comparable with the concept of the East Coast Buffer being considered by the SFWMD at the time of the County's and Department's decision to reject Application PC 94-15. Intervenors worked with the SFWMD in an effort to find a way of modifying Application PC 94-15 to satisfy the SFWMD's concerns. SFWMD utilized computer modeling to simulate groundwater and surface water flows in Management Unit 5 to determine the impact of allowing development of the Property. The SFWMD concluded that Management Unit 5 was more suitable as a recharge area rather than as a reservoir. This conclusion was based, in part, of the transmissibility of the soil and other site conditions which were not conducive to storing water above ground for long periods of time. Use of Management Unit 5 as a recharge area and not a reservoir requires less surface area. Therefore, it was concluded that development in the area might be compatible with the SFWMD's East Coast Buffer concept. The SFWMD modeled four development alternatives for Management Unit 5 and analyzed the impact of each alternative on the efforts to retard seepage, provide groundwater recharge and enhance wetland benefits: (a) retaining the Property as a recharge area and allowing no development; (b) retaining the entire western two-thirds as a recharge area and allowing development of the eastern one-third; (c) retaining the western one-third as a recharge area and allowing development of the eastern two-thirds; and (d) allowing development of the entire management unit. Alternatives (b) and (c) assumed that a berm would be constructed between the recharge area and the developed area. After meeting with Intervenors and discussing the results of the modeling, Intervenors indicated willingness to remove the western portion of the Property from the proposed development. The SFWMD then conducted a more detailed, computer analysis of the following alternatives: (a) continuing existing conditions; (b) constructing a berm around Management Unit 5 and utilizing the entire area as a recharge area; (c) constructing a berm between the eastern and western sections of the Management Unit 5 and utilizing the western section for recharge with no development in the eastern section; and (d) alternative "(c)" with development of the eastern section. As a result of computer modeling of the alternatives, it was concluded that alternatives (b), (c) and (d) could significantly reduce seepage from the Everglades and increase groundwater recharge in to the aquifers when compared to development under the agricultural land use designation of alternative (a). As a result of the more detailed analysis, the SFWMD concluded that essentially all of its goals could be achieved for Management Unit 5 if the western section of Management Unit 5 is preserved even if development is allowed in the eastern section. The SFWMD concluded that the eastern two-thirds of the Property, consisting of approximately 1,280 acres, could be developed as "Irregular 1.5 Residential" if the western one-third, consisting of approximately 685 acres, was utilized as a recharge area. Intervenors agreed to preserve the western third of the Property (685 acres) and grant the SFWMD a flowage easement, consistent with the East Coast Buffer and at a savings of $43 million. On December 14, 1994, the staff of the SFWMD presented the results of the computer modeling to the SFWMD. On December 15, 1994, the SFWMD withdrew its objection to Application PC 94-15, conditioned upon the deletion of the 685 acres from the application and the granting of a flowage easement. The County and the Department were informed of the decision of the SFWMD. Approval of Application 94-15. On December 20, 1994, the County Commission adopted by Ordinance 94-55 an amendment to the Plan, Amendment PC 94-15 (hereinafter referred to as the "Amendment"), subject to the conditions suggested by the SFWMD, which resolved the SFWMD's objections. The Amendment included modifications to the FLUM and text amendments. The Amendment, in relevant part, modifies the future land use designation of approximately 1,280 acres of the Property from "Agricultural" to "Irregular 1.5 Residential". This will allow the construction of a total of 1,920 dwelling units on the Property, or an increase of 1,408 dwelling units over the number of dwelling that may be constructed under the current future land use designation for the Property. In light of Intervenor's modifications of the application, the removal of the SFWMD's objections and the approval of the application by the County, the Department found the Amendment to be in compliance with the Act. On February 14, 1995, the Department issued a notice of intent to find the Amendment in compliance. The County and the Department accepted and relied upon the data and methodology employed by the SFWMD and the conditions for removal of the SFWMD's objections. Petitioner's Challenge. On or about March 8, 1995, Petitioner filed a Petition for Formal Administrative Hearing with the Department challenging the Amendment. Petitioner filed an Amended Petition on April 25, 1995. At the commencement of the final hearing, Petitioner withdrew all issues it had raised in the Amended Petition except the issues of: (a) whether the data and analysis available supports a conclusion that there is a need for additional residential development; and (b) whether the Amendment is supported by data and analysis in light of an ongoing study of the East Coast Buffer. Residential Housing Need. The Plan includes the following Goal and Objective concerning the provision of adequate areas for residential use: Goal 01.00.00 Provide residential areas with a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a desired quality of life and adequate public services and facilities. Objective 01.01.00 Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. The Plan, including the methodology utilized to determine residential need, was found to be in compliance by the Department. The residential need methodology of the Plan utilized the Broward County Population Forecasting Model to project the population of southwest Broward County in 1994 to be 225,489 people. This projected population formed the basis for the allocation of residential housing units for Subregion 5 under the Plan. The Property is located in an area of southwest Broward County designated as Subregion 5 in the Plan. In reviewing the Amendment, the County conducted an analysis of the need for additional residential development in southwest Broward County. This analysis utilized, and was consistent with, the residential need methodology of the Plan. A summary of the data and analysis utilized by the County was provided to the Department. The County's analysis indicated that the population of Subregion 5 has exceeded the population projections for the Subregion of the Plan. By 1994, there were 284,361 people living in Subregion 5 or 17,872 more than projected in the Plan. The increased population rate of growth in Subregion 5 was projected to represent an increase in projected demand for approximately 6,847 residential units in excess of the projected demand expected under the Plan. The analysis also took into account amendments to the Plan which have resulted in a reduction of 1,087 residential units for Subregion 5. When combined with the increased population, the data and analysis supports a conclusion that there is a need for 7,934 additional residential units in Subregion 5. The Amendment increases residential housing in Subregion 5 by 1,134 dwelling units (1,920 units allowed under the Amendment, less 786 dwelling units allowed under the current agriculture classification), well below the projected need for additional residential units for Subregion 5. The data and analysis relied upon by the County and submitted to the Department supports the conclusion of the County that there is need for the proposed additional residential development approved by the Amendment. The data and analysis relied upon by the County and the Department was professionally acceptable and adequate to support the Amendment. The evidence presented by Petitioner failed to prove that the data and analysis relied upon by the County and the Department was not professionally acceptable and adequate. Rather than attempting to prove that the County's methodology was not professionally acceptable or was flawed, Petitioner utilized a methodology based upon an annualized population growth rate for Subregion 5. Petitioner offered evidence that there is sufficient residential housing approved under the Plan to meet the projected population for 15.6 years, beyond the remaining life of the Plan. The methodology utilized by Petitioner was, by the admission of the Petitioner's own witness, not a professionally acceptable methodology. The evidence failed to prove that the data and analysis relied upon by the County does not support its conclusion that there is sufficient need for the additional residential housing authorized for the County by the Amendment. The East Coast Buffer Zone. Efforts to restore the Everglades have been initiated and are ongoing. As a part of these efforts a group of technical and scientific staff members of various federal agencies involved in the restoration efforts were formed as the "Science Sub Group." The Science Sub Group was formed as an advisory group to provide guidance towards ecosystem restoration efforts. The Science Sub Group had no implementing authority. It issued at least one report in late 1993 which included an East Coast Buffer concept. The East Coast Buffer identified by the Science Sub Group included the area in which the Property is located. The Science Sub Group relied upon data obtained from the SFWMD and various computer models developed by the SFWMD, and SFWMD personnel contributed to the preparation of the report. The East Coast Buffer concept generally includes a series of interconnected water flow-ways along the eastern edge of the water conservation areas necessary to restore the Everglades. The federal government has also instituted a study known as the "Central & South Florida Project: Comprehensive Review Study" (hereinafter referred to as the "Restudy"). The United States Corps of Engineers is the lead agency of the Restudy. The first phase of the Restudy's efforts has resulted in a "Reconnaissance Report", also known as the "Recon Study". The second phase of the Restudy's efforts will be the feasibility phase. The feasibility phase will begin in the summer of 1995 and will be completed several years later. The purpose of the Restudy is to bring together the interested federal agencies to review the current management of the Everglades and identify strategies for altering management practices and systems to improve the Everglades. The Recon Study was completed in late 1994. It describes various conceptual strategies for restoring the Everglades. The determination of the feasibility of the strategies has not, however, been started, much less completed. Therefore, although the East Coast Buffer concept is considered in the Recon Study, the actual identification of the area which will constitute the Buffer has not been identified. Nor has the area which should constitute the East Coast Buffer been recommended in the Recon Study. The Recon Study identifies problems and opportunities, formulates alternative plans, evaluates conceptual alternative plans and recommends further study. The Recon Study is advisory. It does not identify, recommend or implement a plan of action. The Coalition presented evidence concerning the ongoing analysis of Everglades restoration efforts. That evidence proved that the Property is located within a very large area, which completely surrounds the Everglades, which is being considered as part of the Everglades restoration effort because of the impact of this large area on restoration efforts. The evidence presented by the Coalition, however, failed to prove that the Property has been, or will be, determined to be essential or even necessary for future Everglades restoration efforts. At the time of the approval of the Amendment and, even at the time of the final hearing of this case, no such determination had been made. Nor had any determination been made as to what will be necessary for the restoration of the Everglades or whether decisions will be made to carry out the necessary restoration efforts. As recognized by the Coalition in its proposed order: 52. The study necessary to make [a determination of the water levels needed] for the areas which are implicated by this amendment will be done in the next two years or three years. * * * 55. There is no way of telling, based on the data and analysis available at this point, how much water will be necessary in order to fully restore the Everglades. . . . Coalition proposed findings of fact 52 and 55. The Coalition also recognized the following: The Reconnaissance study has not reached the point where conclusions can be drawn about parcel specific uses. The next step is the feasibility planning phase, which is a much more detailed phase which will run for several years. . . . Coalition proposed finding of fact 107. Instead of attempting to prove that the data and analysis at the time of adoption of the Amendment indicated that development of the Property authorized by the Amendment would be detrimental to restoration efforts, the Coalition attempted to prove that development of the Property should be delayed until data and analysis is available indicating conclusively what the impact of development of the Property will be on restoration efforts. The Act does not require such delay. In addition to failing to prove what the impact of development of the Property will be on restoration efforts, the evidence presented by the Coalition also failed to prove that the conclusions reached by the Science Sub Group and the Restudy will even be implemented. The evidence presented by the Coalition failed to prove that the conclusions of the SFWMD with regard to the impact of the Amendment are not supported by data and analysis or were not arrived at by professionally acceptable methods. While the evidence proved that there will be some reduction in the amount of groundwater recharge function and seepage control function as a result of the Amendment, the evidence failed to prove what ultimate impact the reductions in recharge and seepage control will be or that the SFWMD's conclusions are not reasonable. While the Coalition proved that the SFWMD's conclusions were not based upon a consideration of what should be done to restore the Everglades, the evidence failed to prove that the information available was sufficiently conclusive that the SFWMD should have objected to the Amendment. The data and analysis relied upon by the County in approving the Amendment was collected and applied in a professionally acceptable manner. None of those agencies charged with responsibility to review the Amendment raised objections to its approval. The evidence failed to prove that the state of the data and analysis available to the County from the Science Sub Group and the Restudy or any other source concerning the area referred to as the East Coast Buffer and the Property is such that it proved that the data that was relied by the County upon was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department dismissing finding the Amendment "in compliance" and dismissing the petition in this case. DONE AND ENTERED this 19th day of July, 1995, in Tallahassee Florida. LARRY J. SARTIN, 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 19th day of July, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Coalition's Proposed Findings of Fact Accepted in 1-2. Accepted in 2. 3-4 Accepted in 3. Accepted in 4. Accepted in 5 Accepted in 4. Accepted in 5. Accepted in 4-6. Accepted in 5-6. Accepted in 6. Hereby accepted. Accepted in 12 14-15 Not relevant. 16-18 Not relevant. See 81-84. 19-25 Not relevant and not supported by the weight of the evidence. See 81-84. Accepted in 29. Not supported by the weight of the evidence. Hereby accepted. Accepted in 26 and hereby accepted. 30-31 See 24. Accepted in 26. Accepted in 36 and 62. Accepted in 62. 35-41 Hereby accepted. 42-48 These proposed findings are generally correct. They are not, however, relevant to the ultimate determination in this case. 49-50 Too speculative. Not supported by the weight of the evidence. The first sentence is hereby accepted. The last sentence is not relevant. See 96. Not supported by the weight of the evidence and not relevant. Not supported by the weight of the evidence. The first sentence is accepted in 96. The last sentence is not relevant. Hereby accepted. 57-63 Too speculative. Not supported by the weight of the evidence. 64-65 Not relevant. Hereby accepted. Accepted in 89 and 91 and hereby accepted. Accepted in 90 and 92. See 86 and 92. Hereby accepted. Although generally true, the evidence failed to prove that this finding specifically applies to the Property. Except for the first sentence, not supported by the weight of the evidence. Hereby accepted. Accepted in 31-33. Not supported by the weight of the evidence. 76-87 Although generally correct, these findings were too broad and the evidence failed to prove that they specifically apply to the Property. 88-90 Although generally correct, these proposed findings are not relevant. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. Too speculative. Not supported by the weight of the evidence. 94-97 Although generally correct, these proposed findings are not relevant. 98 Too speculative. Not supported by the weight of the evidence. 99-100 Not relevant. Hereby accepted. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. 104-105 Not relevant. Too speculative. Not supported by the weight of the evidence. Accepted in 97. Accepted in 90. Too speculative. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 111-114 Too speculative. Not supported by the weight of the evidence. The County's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 7. 3 Accepted in 8. 4 Accepted in 11. 5 Hereby accepted. 6 Accepted in 12. 7 Accepted in 13. 8 Accepted in 14. 9 Accepted in 15. 10 Accepted in 9-10. 11 Accepted in 18. 12 Accepted in 16. 13 Accepted in 17. 14 Accepted in 61. 15 Accepted in 60. 16 Accepted in 19-20, 26 and 62. 17 Accepted in 23. 18 Accepted in 21-22 19-20 Accepted in 24. 21 Hereby accepted. 22 Accepted in 37. 23-24 Hereby accepted. 25 Accepted in 68. 26 Accepted in 65-67. 27-28 Accepted in 67. 29-30 Hereby accepted. 31-32 Accepted in 28. 33 Accepted in 29. 34 Accepted in 30. 35 Accepted in 34. 36 Accepted in 31 and hereby accepted. 37 Accepted in 32-33. 38 Accepted in 31. 39 Accepted in 33. 40 Accepted in 35. 41 Accepted in 316. 42 Accepted in 37. 43 Accepted in 39. 44 Accepted in 40. 45 Accepted in 41. 46 Accepted in 42. 47 Accepted in 72. 48-49 Hereby accepted. Accepted in 73-77 and hereby accepted. Accepted in 76-77. Accepted in 38. Accepted in 79-80 Accepted 58 and 62. 55-57 Hereby accepted. Accepted in 82. Hereby accepted. 60-61 Accepted in 81-84. 62 Hereby accepted. 63-65 Accepted in 46 and hereby accepted. Accepted in 43 and 45. Accepted in 88. Accepted in 89-90. 69-70 Accepted in 85-86. 71 Accepted in 90 and 92-93. 72-77 Hereby accepted. Accepted in 32 and 44. Hereby accepted. None proposed. Accepted in 33. Hereby accepted. Accepted in 50. Accepted in 51. Accepted in 49 and hereby accepted. Hereby accepted. 87-88 Accepted in 52. 89-90 Hereby accepted. Accepted in 53 and 58 and hereby accepted. Accepted in 54. Accepted in 56. Accepted in 58. 95-96 Accepted in 59. Accepted in 60. Accepted in 61. The Department's and Intervenors' Proposed Findings of Fact Accepted in 1. Accepted in 7. Accepted in 8. Accepted in 11. Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 9-10. Accepted in 18. Accepted in 16. Accepted in 17. Accepted in 61. Accepted in 11 and 19-20. Accepted in 20. Accepted in 23. Accepted in 24-25. Accepted in 26. Accepted in 27. Accepted in 36-38. 22-37 Hereby accepted. Accepted in 43. Accepted in 88. Hereby accepted. Accepted in 31. 42-43 Accepted in 44. Accepted in 43 and hereby accepted. Hereby accepted. Accepted in 42. Accepted in 42 and 46. Accepted in 46 and hereby accepted. Accepted in 46. Accepted in 50. Accepted in 46. 52-53 Accepted in 48. Accepted 49. Accepted in 49, 52 and 54. Accepted in 50. Accepted in 51. Accepted in 54 and 57. 59-60 Accepted 54. 61-63 Accepted in 54 and hereby accepted. Accepted in 55. Accepted in 56-57. 66-67 Accepted in 58. 68-70 Accepted in 59. Accepted in 64. Accepted in 58 and 62. Accepted in 60 and 62. Accepted in 63. Accepted in 67. Hereby accepted. Accepted in 67 and hereby accepted. Accepted in 37 and hereby accepted. Not relevant. Accepted in 86. Hereby accepted. 82-83 Accepted in 86. Accepted in 87. Accepted in 89 and hereby accepted. Accepted in 90. Accepted in 90 and 92-93. Accepted in 93. 89-90 Hereby accepted. Not supported by the weight of the evidence. Accepted in 72-78. Accepted in 69-71. Accepted in 70. Accepted in 73-74 and hereby accepted. Accepted in 75. Accepted in 76. Accepted in 77. Accepted in 78. Accepted in 79-80. 101-102 Accepted in 82. Accepted in 83. Accepted in 83-84. Accepted in 81 and 84. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Brion Blackwelder, Esquire Jack Milbery, Esquire 8751 West Broward Boulevard, #206 Plantation, Florida 33324 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Tracy Lautenschlager, Esquire Broward County Attorney's Office 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Glenn Smith, Esquire Michael A. Cohn, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Boulevard Post Office Box 1900 Fort Lauderdale, Florida 33302 Honorable Gerald F. Thompson Chairman, Broward County Board of County Commissioners Governmental Center 115 South Andrews Avenue Fort Lauderdale, Florida 33301
The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, 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 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue The issue is whether plan amendments CPA 10-4 and CPA 10-5 adopted by Martin County (County) by Ordinance Nos. 881 and 882 on August 10, 2010, are in compliance.
Findings Of Fact The Parties The County is a political subdivision of the State and has the responsibility of administering its Comprehensive Plan (Plan). It adopted the two amendments being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The parties have stipulated that Petitioners all reside or operate a business in the County, and they submitted oral or written comments to the County during the adoption process. Intervenors are limited liability corporations owned by King Ranch Florida Operations, LLC, an agricultural operation with offices in Florida and Texas. Intervenors own the subject property, which is more commonly known as Sunrise Groves. The parties have stipulated to the facts necessary to establish that Intervenors are affected persons. The Plan Amendments The amendments concern a 1,717-acre parcel of land located immediately west of, and adjacent to, Interstate 95 (I-95) in the northern part of the County. Southwest Martin Highway (also known as County Highway 714), which runs in an east-west direction, is situated on the south side of the parcel, while the site is separated by a canal on its northern boundary from the City of Port St. Lucie in St. Lucie County. Aerial photographs reflect that undeveloped land lies to the west of the property. See Intervenors' Exhibit 18. At least four large and very urban Developments of Regional Impact (DRIs) have been approved in Port St. Lucie, immediately north of the parcel, including a planned regional mall on the immediate northern boundary of the parcel. From the mid-1960's until the mid-2000's, the parcel was an active orange grove. Due to damage from citrus canker and "greening," which is an incurable, aggressive, and deadly virus affecting citrus plants, the parcel has become a literal wasteland of dead orange trees. The property is now desolate and unprofitable and cannot be converted to any other profitable or feasible agriculture use. Around the same time that the citrus grove was being destroyed, the County commissioned Urbanomics, Inc., and Leak- Goforth Company, LLC, to perform an economic study to determine how the County could better compete in the Florida market. In November 2006, the results of that study were released. See Intervenors' Ex. 11. The study indicated that the County should be pursuing various types of industrial development, with a focus on recruiting firms and institutions with 50 to 100 or more employees, or those that have capabilities and are on pace to reach this minimum employment threshold in three to five years. The study also concluded that in order to accommodate the types of industries that the County would need to pursue, it would need more space designated for industrial use. Based upon the study, the County has adopted policies in the Economic Element of the Plan regarding future economic development in the County. See Joint Ex. 1, Ch. 15. On September 30, 2009, Intervenors applied to the County for a new land use designation to be added to the Plan, allowing industrial uses to be combined with commercial and agricultural uses on their parcel of land. See Intervenors' Ex. 2. Intervenors also applied for a change in the land use category on their property from Agricultural to the new land use category. The re-designated parcel would become a "freestanding urban service district," which requires that the property be served by water and sewer services from a regional supplier rather than individual wells, septic tanks, or on-site package treatment plants. It would be one of two freestanding urban service districts (USDs) in the County.1 When Intervenors initially applied to the County for the amendments, the proposed future land use category was titled "I-95 Agricultural Technology & Employment Center." As the amendment evolved in subsequent months, however, a decision was made to shorten the name to something less cumbersome, which ultimately became "AgTEC," an acronym for Agriculture and Targeted Employment Center. As proposed, the AgTEC designation was significantly different from other land use designations in the Plan in a number of ways. AgTEC is a "site-specific" land use designation, tailored for a specific parcel of property, the 1,717 acres owned by Intervenors. It allows for agricultural uses to continue indefinitely on 817 acres of the parcel, if a viable agricultural use can be found in the future. It also permits new uses on a maximum of 900 acres of the parcel, but limited to certain "Primary Targeted Employment" uses and others which are ancillary to them. Residential is not an allowable use. Finally, it imposes a strict requirement that all future development of the parcel must be subject to a Planned Unit Development (PUD) approval process. On April 14, 2010, the Board of County Commissioners (Board) approved the application and voted to transmit Amendments 10-4 and 10-5 to the Department. On June 25, 2010, the Department issued its Objections, Recommendations, and Comments (ORC) report recommending that the two amendments not be adopted unless additional data were supplied and certain revisions made. See Petitioners' Ex. 4B, pp. 26-47. The Department's objections related to urban sprawl, a failure to demonstrate need, transportation deficiencies, lack of access to public facilities, and a failure to preserve agricultural lands. On July 17, 2010, Intervenors submitted a response to the ORC report, which included an update to the original application addressing the Department's concerns. They also provided additional data and analysis concerning the structure of the County's economy; location quotient data (ratios by type of economic activity in the region), which were consistent with a report submitted by Dr. Nicholson, an economist employed by Intervenors; and environmental information. On August 10, 2010, by a 3-2 vote, the Board adopted the FLUM amendment as Ordinance No. 881 and a revised version of the text amendment as Ordinance No. 882. See Joint Ex. 4 and 5. On October 6, 2010, the Department issued its notice of intent to find the amendments in compliance. See Joint Ex. 6. On October 7, 2010, the Department published notice of its intent to find the amendments in compliance in The Stuart News. Petitioners then timely filed their Petition, as later amended. Ordinance No. 881 refers in its title to a parcel of land known as "Sunrise Groves," which is described in the main body of the ordinance as 1,717 acres of land located west of I-95 and north of Southwest Martin Highway. The site is also defined by legal description attached as Exhibit A to that ordinance. See Joint Ex. 4, pp. 4 and 5. The title indicates that the land designation on the FLUM is being changed from Agricultural to AgTEC. Ordinance No. 882 also refers in its title to a parcel of land as "Sunrise Groves," and that a new site-specific land use category, AgTEC, is being created for that parcel. The text amendments, which are attached as Exhibit A, provide further site-specific indicators of where the new land use designation applies. See Joint Ex. 5, pp. 5-17. They describe an area that is 1,717 acres in size, state that AgTEC uses may be no closer than 300 feet from any existing residential use, and require provision of the right-of-way for a multi-lane arterial north-south roadway "connecting Martin Highway [in Martin County] to Becker Road [in adjoining St. Lucie County], providing the opportunity for a regional parallel reliever road to I-95 . . . ." Id. at pp. 6 and 7. This roadway (an extension of Village Parkway) is specifically depicted on a conceptual map showing the general location where it is to be built. See Joint Ex. 5, AgTEC Long Range Transp. Map. Petitioners contend that the text amendment does not clearly identify the location of the property or Intervenors' parcel as the subject of the amendments, partly because the ordinance title and conceptual map will not become a part of the Plan. However, Ordinance Nos. 881 and 882 clearly refer to the same specific parcel of land intended for designation as "AgTEC" and subject to the requirements of the AgTEC future land use category. When reading the two ordinances, a reasonable person would not be confused as to which property designated for the new land use category applies. The more persuasive evidence supports a finding that no other parcel of land within the County could be similarly designated as "AgTEC," absent an amendment to the AgTEC future land use category in the Plan. Petitioners' Objections As narrowed by their stipulation and the withdrawal of certain issues at hearing, Petitioners contend that the amendments are internally inconsistent with other provisions within the Plan; that the amendments encourage urban sprawl; that the amendments impermissibly convert land designated for agricultural purposes to other uses; that the text amendment is based upon the Plan that was in effect prior to the Evaluation and Appraisal Report (EAR) amendments that became effective in January 2011, thereby creating internal inconsistencies; that there is no demonstrated need for the amendments; that the amendments are not supported by adequate data and analysis; and that the amendments fail to provide meaningful and predictable standards for implementation. A contention that the text amendment includes unauthorized self-amending language is not addressed in Petitioners' proposed recommended order and is presumed to be abandoned. Internal Inconsistency Petitioners contend that the amendments are internally inconsistent with other FLUE provisions in numerous respects. Some of these consistency arguments are based on the fact that the text amendments in Ordinance No. 882 use the numbering system for the goals, objectives, and policies of the FLUE that was in effect when Ordinance No. 882 was adopted on August 10, 2010, rather than the new numbering system that became effective on January 3, 2011.2 As described in Endnote 2, infra, the new numbering system was adopted by the County during the months- long process of amending the Plan during the EAR process. The new text added to the Plan during that time-frame will simply be re-numbered by the Municipal Code Corporation, which publishes the codified version of the Plan, to conform to the new numbering system. This is consistent with the publisher's authority under Part 6 of Ordinance No. 882, which states in relevant part: "CODIFICATION. The word 'ordinance' may be changed to 'article[,]' 'section[,]' or other word and the sections of this ordinance may be renumbered or re-lettered." Joint Ex. 5, p. 3. This codification provision is found in every ordinance adopting a text amendment. By way of example, the content in section 4.4.g.1.n(3) in Ordinance No. 882 (on page 17 of Joint Exhibit 5) will be recodified in new policy 4.7A.14, which replaces the old section. Except for the new number, the content of both provisions is the same. See Joint Ex. 1, Ch. 4, p. 50. There was no evidence that the new EAR- based amendments create an inconsistency with these amendments. Petitioners also contend that an internal inconsistency in the Plan arises due to two references to "I-95 AgTEC" in Ordinance No. 882 (on pages 7 and 11), and a single reference to "AgTech" in Ordinance No. 881 (on page 2). They also argue that the "I-95 AgTEC" category lacks "meaningful and predictable standards for implementation" as a land use designation if it is distinct from the "AgTEC" category. However, they failed to present any evidence that Intervenors or the County intended to create two different future land use categories. The evidence supports a finding that both references to "I-95 AgTEC" in Ordinance 882 were merely "vestigial" references (i.e., references made during an early stage of the amendment process) to the initial title proposed for the land use category when Intervenors first applied to the County. The evidence shows that the County staff simply missed the two references when it conducted an electronic "find and replace" search intended to convert all references in the ordinance to "AgTEC" before presenting the final draft to the Board for adoption. Except for these two references to "I-95 AgTEC," the ordinance consistently uses the "AgTEC" title for the land use designations. Both references are merely scrivener's errors. The single reference to "AgTech" in Ordinance No. 881 is simply a misspelling of the proper title of the new future land use category to be applied to the property. The simultaneous adoption of the two ordinances, the application for both ordinances by the same applicant, and the obvious similarity between the correct spelling and the misspelling support a finding that the use of "AgTech" in Ordinance No. 881 is also a scrivener's error. Historically, after securing Board approval, the staff has been authorized to correct errors in the FLUM without a formal amendment; however, the County Growth Management Director could not recall a situation where a scrivener's error in a text amendment had occurred and was unsure as to how that type of error would be corrected. More than likely, these scrivener's errors will be corrected by another plan amendment. In any event, these non-substantive, minor scrivener's errors do not render the amendments not in compliance. Petitioners further contend that the amendments are inconsistent with the County's stated policy of preserving agricultural lands. See Joint Ex. 1, FLUE policy 4.12A.1. However, the amendments preserve almost one-half of the land (817 acres) for agricultural purposes even though the entire parcel is now unproductive. Petitioners also argue that the amendments are internally inconsistent with FLUE Objectives 4.13A.1.(2)(a) and (b), which provide that the conversion of agricultural land to another land use may be done only when it does not affect the hydrology or productive capacity of adjacent farmlands, and only when it is a "logical and timely extension of a more intense land use in a nearby area." As noted above, there are four approved DRIs immediately north of the parcel in the southwestern quadrant of Port St. Lucie, including a large regional mall on the parcel's northern boundary. The new land use is a logical extension of a more intense land use in a nearby area. Also, there is no evidence that the new land use will affect the hydrology or productive capacity of adjacent farmlands. To the contrary, the evidence shows that any adjacent agricultural areas to the west are protected by a requirement that 75 percent of the common open space be along the western border. It is fairly debatable that the amendments are consistent with the cited policies. Petitioners contend that the amendments are internally inconsistent with a series of FLUE policies that, in general terms: (a) require the availability of services and facilities before expanded urban development may be approved (FLUE policies 4.1B.2., 4.1B.3., and 4.13A.1.(b)); (b) prohibit any regional utility from serving customers outside the Primary Urban Service District (PUSD) and Secondary Urban Service District (SUSD) (FLUE policies 4.7A.2.-4., 4.7A.10., 4.7B.8.(6)-(7), and 4.7B.9.); and (c) prohibit urban development outside the PUSD (FLUE policy 4.13A.9.). Although couched differently, the essence of the argument is that the amendments allow development in an area that is not presently within any PUSD or SUSD, thereby creating an issue of internal inconsistency with other provisions of the Plan. The existing Plan establishes two main types of "urban service districts" in the County: a PUSD and a SUSD. See Joint Ex. 1, Ch. 4. There is an "eastern" PUSD that includes most of the unincorporated coastal area of the County, surrounding the Cities of Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park. Adjacent to the eastern PUSD is a much smaller eastern SUSD. See Joint Ex. 3. Several miles west of the boundaries of the eastern PUSD and SUSD there is a smaller "Indiantown" PUSD that consists of the unincorporated inland area of the County known by that name, and an adjacent Indiantown SUSD. Id. The County's purpose for having USDs is to "regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in the Plan." Joint Ex. 1, FLUE Goal 4.7. The provision of "urban public facilities and services" is generally limited by the Plan to the land inside the County's USDs. The term "public urban facilities and services" is defined as "[r]egional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." Joint Ex. 1, Ch. 2, § 2.2(127). The Plan also contains numerous provisions that establish a broad prohibition against all industrial uses and most commercial uses on land outside the County's USDs. The Plan expressly provides for the creation of so- called "Freestanding Urban Service Districts" within the County. See Joint Ex. 1. Ordinance No. 882 includes an amendment to FLUE section 4.4.M.1.h.(5) to establish that land designated as AgTEC shall be a freestanding USD. See Joint Ex. 5, p. 8. It also amends FLUE section 4.4.g.1.n.(3) to include land designated AgTEC as one of several enumerated "exceptions to the general prohibitions on development outside of the [PUSD]." Id. at p. 17. This means that the amendment creates its own exception from restrictions in the Plan that might otherwise apply to development outside the PUSD. Therefore, the prohibitions against a regional utility serving a customer outside the PUSD and SUSD, or expanding urban development outside a PUSD, do not apply. As noted above, these amended section numbers will be renumbered in the codification process to conform to the numbering in the new EAR-based amendments. However, the content remains the same. See Finding of Fact 18, supra. Petitioners presented no evidence that the freestanding USD for the AgTEC-designated land would lack the urban public facilities and services that would be necessary under the Plan. Utility services do not have to be physically available at the property boundary before a change in land use can be approved; they must only be planned or programmed. To be programmed, the services may be identified in the capital improvement element of the Plan or appear in a DRI approval. According to Mr. Dulin, County Senior Planner, the utility services for the parcel appear in "one or a number of the [DRIs] approved in the southwestern quadrant of Port St. Lucie." This type of arrangement for services is not unusual, as the County now provides services to some areas in St. Lucie County, while Port St. Lucie and St. Lucie County provide services to certain areas in the County. The evidence shows that Port St. Lucie has the capacity to meet the requirements of the development, and that those services will be paid for by the developer, and not the County. At the amendment stage, the lack of a formal written agreement between the developer and Port St. Lucie is of no concern, as one is not required until the Intervenors seek a development order from the County. It is fairly debatable that the amendments are consistent with the FLUE. Urban Sprawl Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 "primary indicators" of urban sprawl to be considered in the review of plan amendments to determine whether the presence of multiple indicators "collectively reflect a failure to discourage urban sprawl." Fla. Admin. Code R. 9J- 5.005(5)(d). Petitioners' expert, Charles G. Pattison, contends that, with the exception of four indicators (1, 4, 11, and 13), all other indicators are triggered by the changes effectuated through the amendments being challenged. However, indicator 3 was not raised in the Amended Petition or stipulation. Therefore, only the remaining eight indicators will be addressed. See Heartland Envtl. Council, Inc. v. Dep't of Community Affairs, Case No. 94-2095GM (Fla. DOAH Oct. 15, 1996), modified in part, Case No. DCA-96-FOI-GM (Fla. DCA Nov. 25, 1996), 1996 Fla. ENV LEXIS 163 at *63. Indicator 2 requires a determination as to whether the amendments promote, allow, or designate "significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Fla. Admin. Code R. 9J-5.006(5)(g)2. As noted above, large and very urban DRIs have been approved in neighboring Port St. Lucie just north of Intervenors' property, including a planned regional mall on the immediate northern boundary of the property. Also, some of the infrastructure for these developments has been constructed immediately north of Intervenors' parcel, to which the infrastructure on Intervenors' parcel is required to connect. It is unreasonable to ignore this development simply because it lies within an adjacent local government, rather than viewing the existing and approved development in the area as a whole. A more reasonable approach is to consider the existing urban areas immediately to the north of the parcel. Indicator 5 requires an analysis to determine whether the amendments fail to "adequately protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils." Fla. Admin. Code R. 9J-5.006(5)(g)5. Because the parcel is bordered on the east by I-95 and on the north by DRIs in Port St. Lucie, the only areas of concern affected by this indicator would be to the south or west of the parcel. Petitioners failed to prove, however, that the AgTEC requirements for buffers on the east and south boundaries and required open space on the western border of the site constitute inadequate protection for any adjacent agricultural areas or activities within the meaning of the rule. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. See Fla. Admin. Code R. 9J-5.006(5)(g)6.-8. Urban sprawl is generally indicated when new public facilities must be created to serve a proposed use. As noted above, the provider of water and sewer services to Intervenors' parcel (Port St. Lucie) has ample capacity to meet its projected needs and the capability of doing so from adequately sized lines located within a quarter of a mile from the parcel. Also, there is no credible evidence that there will be a lack of transportation infrastructure to meet the demand expected to be placed on the parcel. Indicator 9 requires an analysis to determine if the amendments fail "to provide a clear separation between rural and urban uses." Fla. Admin. Code R. 9J-5.006(5)(g)9. Through the use of setbacks, buffers, and other site design criteria, it is at least fairly debatable that the amendments create a sufficiently clear separation between the industrial/commercial uses that would be allowed and any rural uses to the south and west of the site. Petitioners did not identify any adjacent rural uses that would require such separation. Indicator 10 requires that the amendments do not discourage or inhibit infill development or the redevelopment of existing neighborhoods and communities. While Petitioners pointed out that there are other parcels in the County currently designated for industrial use, those parcels are either too small or too scattered to attract the types of industrial development desired by the County, which are described in the Economic Element of the Plan. Further, there was no evidence that the other smaller and scattered parcels would be adversely affected by the large-scale development envisioned on the AgTEC land. Finally, indicator 12 requires an analysis to determine if the amendments result "in poor accessibility among linked or related land uses." Fla. Admin. Code R. 9J- 5.006(5)(g)12. The evidence shows that the AgTEC requirements for new transportation infrastructure, coupled with the existing access from two adjacent interchanges on I-95, provide ample accessibility for the parcel and other related land uses. In summary, it is at least fairly debatable that none of the primary indicators of urban sprawl at issue are triggered by the amendments. Other Issues Petitioners assert that Intervenors failed to demonstrate a need for commercial or industrial land outside the USDs. They also contend that the economic study performed by Dr. Nicholson failed to consider other vacant parcels of land designated for industrial use, including large amounts of acreage in Palm City and Indiantown. However, Dr. Nicholson established that of the 2,590 acres of available industrial land in the County, the vast majority of these sites are small, less than five acres in size, and are inadequate. He also established that the County lacks any well-planned, amenity- oriented industrial, office, or business parks, which would be the type of development contemplated on Intervenors' parcel. It is fairly debatable that the needs analysis submitted by Intervenors is adequate to support the amendments. Although raised as an issue, there was no evidence that the amendments are internally inconsistent with any provisions within the Economic Element of the Plan. All other contentions not specifically addressed herein have been considered and rejected. Improper Purpose Because they did not substantially change the outcome of the Department's determination that the amendments are in compliance, Petitioners are non-prevailing adverse parties. See § 120.595(1)(e)3., Fla. Stat. Therefore, it is necessary to make a determination as to whether Petitioners participated in this proceeding for an "improper purpose," as that term is defined in section 120.595(1)(e)1. Petitioners generally alleged that the amendments were internally inconsistent with other Plan provisions in numerous respects, that they encouraged urban sprawl, that they contain substantive errors that cannot be corrected in this proceeding, and that there is no needs analysis to support the amendments. Each of these contentions was ultimately found to be without merit, and contrary evidence on these issues submitted by the County and Intervenors was credited. However, when taken as a whole, the record does not support a finding that Petitioners participated in this proceeding "primarily" to harass the applicants, increase the cost of litigation, or cause them unnecessary delay. The Amended Petition was not frivolous.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendments adopted by Ordinance Nos. 881 and 882 are in compliance. DONE AND ENTERED this 5th day of May, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2011.
The Issue Whether an amendment to the St. Lucie County Comprehensive Plan which was adopted by ordinance number 92-029 has rendered the St. Lucie County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, St. Lucie County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenors, Brian Charboneau and Kathy Charboneau, are the owners of a parcel of real property located in the County, which is the subject of the comprehensive plan amendment that is the subject of this proceeding. The parties stipulated that the Intervenors have standing to participate in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the east by the Atlantic Ocean, on the west by Okeechobee County, on the north by Indian River County and on the south by Martin County. Geographically, the County consists of approximately 600 square miles, or approximately 384,000 acres. Approximately 513 square miles, or approximately 328,320 acres, of the County are unincorporated and subject to land use planning by the County. The significant man-made features of the County include Interstate 95, the Florida Turnpike, State Highway 70 and the Fort Pierce International Airport. The airport is operated by the County. There are two incorporated areas within the County: Fort Pierce and Port St. Lucie. The majority of urban development within the County is located within these municipalities and consists mainly of detached, single-family residential dwellings and multifamily units. The estimated permanent population projected in the Plan for the County in 1990 was approximately 151,700. Including seasonal population, the estimated population for the County for 1990 was approximately 182,400. The majority of the County's land area is used for citrus production. The majority of the agricultural land use in the County is located within the County's unincorporated area, to the west of Interstate 95 and the Florida Turnpike, which both run generally north and south through the County. As a result of recent cold weather in areas of Florida north of the County, citrus production in the County has increased in recent years by approximately 35,500 acres between 1978 and 1992. Major natural divisions of the County are the Atlantic Coastal Ridge (including barrier islands), the Eastern Valley and the Osceola Plain. Adoption of the County's Comprehensive Plan. On January 9, 1990, the County adopted a comprehensive plan pursuant to the Act (hereinafter referred to as the "Plan"). The Plan applies to, and governs growth within, the unincorporated area of the County. The Plan excludes areas within the municipalities of Fort Pierce and Port St. Lucie. (Unless otherwise specified, any further reference to the County constitutes a reference to only the unincorporated areas of the County subject to the Plan.) The Plan was based, in part, on an earlier comprehensive plan adopted by the County in 1975 pursuant to the former Local Government Comprehensive Planning Act. The goals, objectives and policies of the Plan and the Future Land Use Map of the Plan were adopted by the County by ordinance. Data and analysis submitted by the County to the Department with the Plan was not adopted by the County by ordinance. The Department reviewed the Plan and on March 21, 1990, filed a Statement of Intent to find the Plan not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. A notice of the Department's determination was published in a local newspaper. The Department determined that the Plan was not "in compliance", in part, because of a conclusion that the Plan allocated twice as much land area to residential land use categories as data concerning the expected population of the County for the year 2015 justified. The Department, therefore, concluded that the Plan was not based on data and analysis, and did not discourage the proliferation of urban sprawl. The County and the Department entered into settlement negotiations which resulted in the execution of a Stipulated Settlement Agreement in October of 1990 disposing of the Department's objections to the Plan. Pursuant to the agreement, the Department agreed that it would find the Plan "in compliance" if the County adopted certain remedial amendments to the Future Land Use Element of the Plan. The terms of the agreement were subsequently carried out. See DCA exhibit 4. The remedial amendments were adopted in part due to the Department's concern about the the proliferation of urban sprawl. This concern was addressed through the remedial amendments by adding certain development controls and requiring clustering of residential development on lands classified agricultural. The remedial amendments also included Policy 1.1.2.4 and Policy 1.1.2.5. Policy 1.1.2.4 is quoted, infra, in finding of fact 123. Policy 1.1.2.5 provides: Provide adequate buffering and/or setbacks between agriculture and non-agricultural uses to protect such agricultural uses from adverse impacts associated with enforcement of nonagricultural development or creation of nuisances by agricultural operations. DCA exhibit 4. The remedial amendments also include Objective 1.1.5 and related policies governing development within the Urban Service Area. The Future Land Use Element of the Plan. The Future Land Use Element and the Future Land Use Map of the Plan reflect a long-term planning period of twenty-five years, ending with the year 2015. In the Introduction of the Future Land Use Element of the Plan (DCA exhibit 1 and St. Lucie County exhibit 1), there is a general description of the Future Land Use Element: The Future Land Use Element has been divided into a series of sections which analyze the existing patterns of development within the community, portray future patterns of develop- ment and recognize unique or special areas within the community that should be considered in future land use determinations. Integral to the success of the Comprehensive Plan are the Goals, Objectives, and Policies which will be used to direct the location and intensity of development for the variety of uses necessary for a healthy and diversified community. Page 1-1, St. Lucie County exhibit 1. The Future Land Use Element of the Plan includes the following "major development philosophy": Over the years, the County has been requested to approve development proposals that would permit the encroachment of urban uses in areas previously used for agricultural purposes. Many of these areas are outside of what may be considered the communities existing urban form or pattern. As discussed later in this element, the cost of providing the necessary community services to these development sites is becoming an increasing community concern. . . . Page 1-6, St. Lucie County exhibit 1. The Future Land Use Element of the Plan goes on to recognize the importance of citrus production: The major use of land within the unincorporated areas of the County is agriculture. Well over 60 percent of the County is presently used for the production of citrus, cash crops or ranching activities. These agricultural activities account for St. Lucie County being ranked among the top citrus producers in the State of Florida, contributing substantially to the local and regional economy. Page 1-11, St. Lucie County exhibit 1. Sixteen general categories of future land use are identified and defined in the Future Land Use Element of the Plan: Agriculture: 5 and 2.5. Residential: Estate, Suburban, Urban, Medium, High. Residential/Conservation. Conservation-Public. Commercial. Industrial. Public Facilities. Transportation/Utilities. Historic. Mixed Use. Special District. The density of development for the residential categories established in the Plan are 1 unit per acre for Estate, 2 units per acre for Suburban, 5 units per acre for Urban, 9 units per acre for Medium and 15 units per acre for High. The density for residential use of the agriculture categories established in the Plan are 1 unit per 2.5 acres for Agriculture-2.5 and 1 unit per 5 acres for Agriculture-5. Population estimates contained in the Future Land Use Element of the Plan are based upon estimates of population of the University of Florida Bureau of Economic and Business Research. The Plan indicates that the County has determined that the University's "high" projections appear to reflect more accurate population projections for the County. The projections concerning population contained in the Future Land Use Element and in this Recommended Order are based upon those "high" projections. Based upon the Plan's data and analysis projections, it is estimated that the permanent population of the entire County was 135,715 in 1988 and 318,650 in 2015. With the seasonal population added, based largely on agriculture related increases in population, the population was estimated at 154,141 in 1988 and 382,380 in 2015. Thus, the estimated increase in the population for the entire County from 1988 to 2015 is 182,935 permanent residents and 219,522 permanent and seasonal residents. In the County alone, the permanent population is estimated to be 54,226 in 1988. For the year 2015, the estimated permanent population is 93,045. With the seasonal population added, the population for 1988 is estimated at 65,119 and 111,654 for the year 2015. Therefore, the estimated total increase in population for the year 2015 is 38,779 permanent residents and 46,535 permanent and seasonal residents. For the year 1988, the Future Land Use Element of the Plan includes an estimate that the existing acreage being used for residential purposes was 16,900 acres. The Plan's Housing Element includes an estimate of only 12,369 acres of residential land use in 1988. To determine projected residential land use needs for the year 2015, the Future Land Use Element provides the following: For the purpose of determining the future land use needs in the community, a ratio has been established which is based upon current (1988) development conditions. This ratio was determined by dividing the seasonal population of the County in 1988 by the estimated amount of land consumed by broad land use category type. . . . Page 1-22, St. Lucie County exhibit 1. Actually, the ratio was determined by dividing the permanent population of the County in 1988, and not the seasonal population, by the estimated amount of land being used for residential purposes. The ratio of population in 1988 to residential acreage use in 1988 results in an estimate of the historical, minimum amount of residential acreage used in the County per 1,000 residents. Thus, it is concluded in the Plan that 312 acres (16,900 acres in residential use in 1988 divided by 54,226 permanent residents in 1988), or .312 acres per person have been used historically for residential purposes. Based upon the estimate of land in residential use in 1988 contained in the Housing Element of the Plan, the ratio is .228 (12,369 acres in 1988/54,226 1988 population). Applying the historical ratio of permanent residents per acre of residential acreage of .312 to the projected seasonal population in the year 2015 of 111,654, the Future Land Use Element of the Plan estimates that the total residential acreage needed by the year 2015 will be 34,836 acres: 111,654 x .312 = 34,836. The estimated total residential acreage needed in the year 2015 based upon the estimated residential acreage in 1988 contained in the Plan's Housing Element is 25,457 acres: 111,654 x .228 = 25,457. If the historical ratio of permanent residents per acre of residential acreage of .312 is applied to the projected increase in permanent population by the year 2015 of 38,779, the additional residential acreage needed by the year 2015 will only be 12,099 acres. Based upon this analysis, there will be a need for a total of 28,999 acres of residential land for permanent residents by the year 2015 (16,900 1988 acres + 12,099 projected need). Using the Plan's Housing Element ratio of .228 and the projected increase in permanent population results in a conclusion that there will be a need for an additional 8,841 acres of residential land. Based upon the projected population growth in permanent and seasonal residents for the year 2015 (46,535 increase in seasonal population) and applying the Plan's historical ratio of residential acres per 1,000 people (.312), the projected additional acreage needed for residential use by the year 2015 is 14,518 acres. Based upon this analysis, there will be a need for a total of 31,418 acres of residential land for the seasonal population by the year 2015 (16,900 1988 acres + 14,518 projected need). Applying the Plan's historical ratio of residential acres per 1,000 people to determine projected additional residential acreage need and using the projection of acreage in residential use in 1988 contained in the Housing Element, there is a need for only 26,887 total acres of residential land (12,369 1988 acres + 14,518 projected need). In the Plan, the County applied the historical residential ratio of .312, which is based upon 1988 permanent population, to the total projected 2015 permanent and seasonal population of 111,535 and concluded that there is a need for a total of 34,836 acres for residential use in 2015. This amounts to a total of 17,936 additional acres (34,836 - 16,900). Based upon the calculations contained in findings of fact 33 through 37, the Plan's projection of additional residential acreage is incorrectly high. Whether the Plan's higher estimate of need is used does not, however, appreciably affect the following determinations. Therefore, for purposes of this Recommended Order, the Plan's incorrect estimate of additional residential acreage needed will be used. The Future Land Use Map of the Plan reflects the County's conclusion that there are approximately 70,989 acres of land in the County available for residential use, not including potential residential development of land designated for agricultural use of one dwelling per 2.5 acres or per 5 acres, and excluding land involved in three amendments to the Plan, including the subject amendment. The 70,989 acres includes acreage already in residential use in 1988 (16,900 acres) and vacant acreage available for residential use through the year 2015. It is estimated in the Plan that there are 2.34 people per dwelling unit in the County. The remedial amendments to the Plan the County agreed to adopt did not remove any of the 70,989 acres of land allocated on the Future Land Use Map for residential use, modify densities, or modify the agricultural classifications of the Future Land Use Map. The Plan designates a portion of the County as an Urban Service Area. The Urban Service Area is depicted on the Future Land Use Map of the Plan. The Urban Service Area is generally described, in pertinent part, as follows: . . . . This area represents the preferred regions for development at urban intensities. The area indicated is the most likely to have centralized water and wastewater services provided by either a municipal utility or a privately operated regional enterprise. The intent of the urban service area designation is to restrict the negative impacts of a sprawling low density development pattern and the fiscal burden that pattern of development has on the ability of the community to meet its service needs. The Urban Service Area is not designed to be a permanent or static limitation on growth. Rather, it is intended to indicate the areas of the County that can reasonably be expected to be provided with necessary community services during the fiscal planning periods of this plan [to 2015]. . . . . Page 1-40, St. Lucie County exhibit 1. The western boundary of the Urban Service Area runs generally north and south along the western boundary of Fort Pierce and Port St. Lucie. The eastern boundary is the Atlantic Ocean. Future Land Use Objective 1.1.4 and Policies 1.1.4.1 through 1.1.5.9 deal with the Urban Service Area. Objective 1.1.4 of the Future Land Use Objective provides: In coordination with the other elements of this plan, future development shall be directed to areas where the provision of urban and community services/facilities can be ensured. Page 1-59, St. Lucie County exhibit 1. In pertinent part, the Policies related to Objective 1.1.4 provide the following: Policy 1.1.4.1 Encourage the location of urban land use intensities, through the development of density bonus and incentive programs in the Land Development Regulations, to those areas that lie within the defined urban service boundary before encouraging/supporting the conversion of property in the agricultural and suburban areas to higher intensity urban uses, but still keeping all development authorizations in line with the adopted levels of service within this plan. Policy 1.1.4.2 Require that new development be designed and planned in a manner which does not place an unanticipated economic burden upon the ser- vices and facilities of St. Lucie County. Policy 1.1.4.3 Encourage the use of cluster housing and planned unit development techniques to conserve open space and environmentally sensitive areas, through the incorporation of the following into the County's Land Development Regulations: The establishment of minimum acreage requirements necessary to support a viable mixed use community providing sufficient design flexibility to allow innovation and creativity in all forms of planned unit developments; The establishment of minimum open space ratios of 30 percent or greater in all planned unit developments including within the PUD documents assurances on the part of the developer that such areas will remain as open space to protect existing native habitat, to provide for minimum setback needs from adjacent uses, and to provide active and passive recreational as well as visual amenities. The establishment of minimum open space standards; The establishment of provisions ensuring the long term preservation of remaining open spaces; The establishment of a mixed use district combining residential, commercial, recreational, educational, and other income producing uses providing significant functional and physical integration among uses; The establishment of minimum standards for the provision of on-site shopping, job opportunities and internal trip capture; and, The establishment of specific requirements to provide efficient, centralized infrastructure (potable water and sanitary sewer). Include specific restrictions on the use of septic tanks, individual wells, and package plants in planned unit developments. Policy 1.1.4.4 Provide for the calculation of gross residential density on lands that lie above the mean high water elevation. Provide for the ability to transfer/cluster of residential density from wetland and other sensitive or unique environmental habitats to upland areas on contiguous property. Pages, 1-59 through 1-62, St. Lucie County exhibit 1. The Plan indicates that the Urban Service Area is likely to have centralized water and wastewater services provided. There is no firm commitment in the Plan, however, to provide central water and sewer services for development within the Urban Service Area. Policy 1.1.5.1 of the Plan provides that urban development activities are restricted to the Urban Service Area. The Policy also provides that "urban development activities" include "any residential development activity in excess of two units to the gross acre . . ." for purposes of the Policy. The densities of Policy 1.1.5.1 for residential development are more dense than what is generally considered as an "urban density". The land located outside of the Urban Service Area is classified almost exclusively as Agriculture-2.5 or Agriculture-5. There are a few areas which abut the Urban Service Area boundary line which are classified for residential use, including a few small parcels which were in existence prior to adoption of the Plan. The Plan does not indicate the current or future existence of urban development within the Urban Service Area. A wide range of development densities and intensities are provided for in the Plan for the Urban Service Area. With regard to development in the Urban Service Area, the Plan provides, in part, the following: It is the position of St. Lucie County that in order to permit the mechanics of the free market system to operate openly, there must be a choice in where to locate future development. Offering the possibility of various development areas, when located within the defined urban service area, is not supportive of a pattern of urban sprawl. Page 1-24, St. Lucie County exhibit 1. Amendments to the Plan. Since the determination that the Plan was "in compliance", the Plan has been amended three times, including the subject amendment. One amendment amended the Future Land Use Map to redesignate the future land use of approximately 2.1 acres of land from Agriculture-2.5 to Residential Estate (hereinafter referred to as the "Furlong Amendment"). Another amendment amended the Future Land Use Map to redesignate the future land use of approximately 9.57 acres of land from Residential Urban to Commercial (hereinafter referred to as the "Hayes Amendment"). Finally, the subject amendment amends the Future Land Use Map to redesignate the future land use of approximately 164 acres of land owned by the Intervenors from Agriculture-2.5 to Residential Estate (hereinafter referred to as the "Charboneau Amendment"). The Charboneau Amendment. On September 22, 1992, the Board of County Commissioners of the County adopted Ordinance No. 92-029 approving the Charboneau Amendment. The Charboneau Amendment, as adopted by the County, is effective only if it is ultimately determined that the amendment is "in compliance". After review of the Charboneau Amendment, the Department determined that it was not "in compliance". This determination was reflected in a notice which the Department caused to be published and in the Department's Statement of Intent of November 11, 1992. The Charboneau Amendment modifies the future land use classification of the Charboneau Property from Agriculture-2.5 to Residential Estate. Agriculture-2.5 allows residential use of the property of no more than one unit per 2.5 acres. Residential Estate would allow residential development of the property of one unit per acre. The Charboneau Property and the Surrounding Area. The subject parcel consists of approximately 164 acres of land (hereinafter referred to as the "Charboneau Property"). The Charboneau Property is generally rectangular shaped with several parcels of land in the southern portion of the parcel which are not included in the Charboneau Amendment. Those "out parcels" retain their future land use designation of Agriculture-2.5 in the Plan and on the Future Land Use Map. The Charboneau Property represents approximately five one-hundredths of one percent of the 328,230 acres of unincorporated land in the County. The northeastern portion of the Charboneau Property consists of cleared land used for grazing a small number of cattle. The remainder of the property is not being actively used for agriculture or other purposes and is covered by pine flatwood and palmettos. The Charboneau Property is located in approximately the geographic center of the County. It is outside, but on the fringe, of the major development areas of the County. The Charboneau Property is bounded generally on the east by Gentile Road, a two-lane dirt road running north from State Road 70. State Road 70, also known as Okeechobee Boulevard, is located to the south of the Charboneau Property. State Road 70 is a major east-west arterial road. It connects the Florida Turnpike and Interstate 95 area, which are located within the Urban Service Area to the east of the Charboneau Property, with Fort Pierce. Access to the Charboneau Property is off Gentile Road. The Charboneau Property is located to the west and outside of the Urban Service Area designated by the Plan. Prior to the adoption of the Charboneau Amendment, the parcel of property generally contiguous to the eastern boundary of the Charboneau Property was also located outside the Urban Service Area. The boundary of the Urban Service Area had been located contiguous to the eastern boundary of the adjacent parcel. The adjacent parcel and the Charboneau Property are separated by Gentile Road. In conjunction with the adoption and transmittal to the Department of the Charboneau Amendment, the Board of County Commissioners of the County initiated, directed and ratified a relocation of the Urban Service Area boundary approximately 1,000 feet to the west. This placed the Urban Service Area boundary at Gentile Road. This modification in the Urban Service Area was consistent with the Plan, which allows a modification of the boundary of the Urban Service Area of up to 1,500 feet without plan amendment. As a consequence of the modification of the Urban Service Area, most of the eastern boundary of the Charboneau Property is contiguous to, but still outside, the Urban Service Area. On the northern boundary of the Charboneau Property is a canal. The canal is approximately thirty feet wide, although the width of the water in the canal is less. The canal is approximately six feet deep. To the north and northeast of the canal are citrus groves in active agricultural production. The property (hereinafter referred to as the "Coca- Cola Property"), is owned by Coca-Cola. The Coca-Cola Property is classified as Agriculture-2.5 in the Plan. Except for certain small pockets of property which border on the Charboneau Property which are described, infra, the property to the north, northwest and west of the Charboneau Property are used predominantly for citrus. Most of this property consists of large tracts of corporate-owned land. To the north of the Coca-Cola Property are also large tracts of property owned by government agencies. To the northeast of the Coca-Cola Property is a tract owned by the University of Florida which is used for citrus research. To the northwest of the Coca-Cola Property is a tract owned by the United States Department of Agriculture. The County also operates a livestock farm in the area. To the northwest of the Charboneau Property and to the west of the portion of the Coca-Cola Property abutting the northern boundary of the Charboneau Property is a parcel of property known as Fort Pierce Gardens. Fort Pierce Gardens is a residential subdivision which apparently was not subject to the requirements of the Plan because of its existence prior to adoption of the Plan. The future land use classification of Fort Pierce Gardens is Agriculture- 2.5. The lots in Fort Pierce Gardens range in size from one acre to five acres. There are a few houses already constructed and a few more houses under construction in Fort Pierce Gardens. Development of Fort Pierce Gardens is less than half complete. Adjacent to the western boundary of the Charboneau Property is a tract known as Pine Hollow Subdivision. Pine Hollow Subdivision is a residential subdivision which apparently was not subject to the requirements of the Plan because of its existence prior to adoption of the Plan. It is approximately the same size as the Charboneau Property. The future land use classification of the parcel is Agriculture-2.5. Pine Hollow Subdivision consists of 110 platted lots that are being developed in phases. The first phase consists of thirty lots which are still under development. A County maintained road has been constructed in phase one. Development of the other phases has not begun. The remaining portion of the tract has three rough-cut dirt roads. The subdivision is less complete than Fort Pierce Gardens. Lots in Pine Hollow Subdivision are slightly larger than one acre. Homes in the subdivision will use wells and septic tanks. To the west of Pine Hollow Subdivision and Fort Pierce Gardens is a large area of land used for citrus. These lands are designated Agriculture-2.5 and Agriculture-5. To the south and southwest of the Charboneau Property is a parcel of property with an airstrip which has been used by crop-dusting airplanes. The airstrip is oriented in a southeast-to-northwest direction. The airstrip and the parcel of land to the south of the Charboneau Property and north of State Road 70 is designated Agriculture-2.5 on the future land use map. The airstrip is not currently being used for crop-dusting aircraft. Improvements have recently been made to the airstrip, however, which evidence an intent to use the airstrip in the future for crop dusting activities. Hearsay evidence corroborates this finding. The land to the south of the Charboneau Property and south of State Road 70 is in use for citrus production. The parcel between the Charboneau Property and State Road 70 is named Walsh Farms. The property to the south and southeast of State Road 70, while currently used for citrus production, is designated Residential Suburban on the Future Land Use Map, allowing development of two dwelling units per acre. This property is, however, located inside the Urban Service Area. To the east of Gentile Road is a parcel of property approximately the same size, north to south, and about half the size, east to west, as the Charboneau Property. This parcel has been developed as what was characterized as rural ranchette. There are approximately eighteen large lots of four to five acres up to ten to twenty acres. The lots in the parcel (hereinafter referred to as the "Ranchette Property"), have single-family homes constructed on them and the lots also have some citrus and horses. The evidence, however, failed to prove that the Ranchette Property was being used for commercial agricultural purposes. The parcel is designated Agriculture-2.5 on the Future Land Use Map. One parcel of approximately 2.5 acres located within the Ranchette Property was the subject of the Furlong Amendment. To the immediate east of the Ranchette Property, bounded on the south by State Road 70 and on the east, in part, by the Florida Turnpike, is an area designated as Residential Suburban on the Future Land Use Map. The area, which lies within the Urban Service Area, is largely undeveloped at this time except for a development known as Hidden Pines. Hidden Pines is a vested subdivision. Hidden Pines consists of lots of approximately one acre. The homes on these lots are served by wells and septic tanks. The subdivision is nearly completely built-out. Approximately 1.3 miles to the east of the Charboneau Property is the center of an area immediately to the north of where the Florida Turnpike and Interstate 95 cross. From this point, the Florida Turnpike travels to the northwest, and closest to the Charboneau Property, from the crossing with Interstate 95. Interstate 95 travels to the northeast, and furthermost from the Charboneau Property, from the crossing. Immediately to the north of the crossing State Road 70 intersects the Florida Turnpike and Interstate 95 in a generally east-west direction. The western boundary of this area is approximately two-thirds of a mile from the southeast corner of the Charboneau Property. There is an interchange of the Florida Turnpike immediately to the north of the crossing and just to the south of State Road 70. There is also an interchange of Interstate 95 to the north of the crossing at State Road 70. State Road 70 becomes a six-lane arterial road to the east of the Florida Turnpike. There are no level of service deficiencies on this portion of State Road 70. The area within and immediately outside the area north of the crossing, west of Interstate 95 and east of the Florida Turnpike, is designated as the Okeechobee Road/I-95 Mixed Use Activity Area. The area may be used for varied, compatible commercial uses and residential use up to fifteen dwelling units per acre. The Mixed Use Activity Area is currently being developed. There are hotels, motels, gas stations, restaurants and an outlet mall already in existence in the area. Another outlet mall is being constructed. Reynolds Industrial Park, consisting of approximately 200 acres, is being developed. To the northeast of the Charboneau Property and the Coca-Cola Property to the east of Gentile Road is an area designated Residential Estate. This area is within the Urban Service Area and currently is undeveloped. Part of the property is used for citrus production. In summary, the area to the west of the Urban Service Area, including the Charboneau Property, is designated for agricultural uses except for Fort Pierce Gardens and Pine Hollow Subdivision. Fort Pierce Gardens and Pine Hollow Subdivision are isolated islands of development within an area actively used for agriculture purposes. Insufficient Data and Analysis to Justify an Increase in Residential Acreage by the Designation of the Charboneau Property As Residential Estate. In the Department's Statement of Intent, it was concluded that the Charboneau Amendment is not "in compliance" based upon the lack of data and analysis to support the conversion of the Charboneau Property from Agriculture- 2.5 to Residential Estate with a designated density of one dwelling per acre. Currently, the Agriculture-2.5 classification of the Plan allows one dwelling unit per 2.5 acres, or a total of approximately 65 residential units on the Charboneau Property. The Plan, however, requires that any non-agricultural development of over twenty units within an Agriculture-2.5 classification must maintain open space of at least 80 percent of the project site in order to retain some viable agricultural use of the property. Residential Estate does not require clustering of units or open space. A total of approximately 163 residential units, one per acre with no open space, or a maximum of an additional 98 residential units can be constructed on the Charboneau Property if the Charboneau Amendment is approved. When the Charboneau Amendment was submitted to the Department for review, the County failed to provide any data or analysis in support of a potential increase in residential units of 98 units or the change in classification of the appropriate use of the Charboneau Property from agricultural to residential. For example, no analysis of the number of acres in the County which are available for development at one unit per acre was performed by the County. The data and analysis of the Plan and, in particular, the Future Land Use Element and the Future Land Use Map, allocate a total of 54,089 acres for new residential development in the County through the year 2015 to accommodate the need for residential property for projected increases in population (70,989 total acres available - 16,900 acres in use in 1988). If the acreage used for residential purposes in 1988 evidenced by the Housing Element is used, the Plan allocates a total of 58,620 acres for new residential development (70,989 total acres available - 12,369 acres in use in 1988). Based upon the Plan, there is a need for only 17,936 additional acres of residential property to accommodate projected population increases through the year 2015. See finding of fact 38. With 54,089 acres available for residential development through the year 2015 pursuant to the Plan and a need for only 17,936 additional acres, there are 3.01 times the number of acres of land designated pursuant to the Plan to accommodate need projected under the Plan. If the Housing Element historical ratio of use is used, there are only 13,088 acres of residential property needed to accommodate projected population increases through the year 2015. With 58,620 acres available for residential development through the year 2015 pursuant to the Plan and a need for only 13,088 additional acres, there are 4.47 times the number of acres of land designated pursuant to the Plan to accommodate need projected under the Plan. Applying the historical ratio of residential use to only the projected additional permanent population indicates a need for an additional 12,099 acres for residential use by the year 2015. Finding of fact 35. This projection represents 4.47 times the number of acres needed for projected new residential growth based upon existing ratios of residential land use (54,089 projected acres/12,099 projected need). Applying the historical ratio of residential use based upon the Housing Element of the Plan to only the projected additional permanent population indicates a need for an additional 8,841 acres for residential uses by the year 2015. Finding of Fact 35. This projection represents 6.63 times the number of acres needed for projected new residential growth based upon existing ratios of residential land use (58,620 projected acres/8,841 projected need). Although approved by the Department, the evidence in this case proved that the Plan contains a designation of sufficient land in the County through the year 2015 to more than adequately meet the reasonably anticipated need for residential property. In fact, the Plan over-allocates land well in excess of any reasonable expectation of the amount of property needed to meet such needs. Even based upon the Plan's projections, the County has allocated more than 3 times the land needed to meet the County's own projections for the need for residential land for the year 2015. While the existing provisions of the Plan are not subject to review, when asked to consider an amendment providing for an increase in residential property, the existence of excessive residential property should not be ignored. In this case, to ignore the realities of the excessive allocation of land for residential purposes in the County contained in the Plan and approve the classification of additional property as residential, would simply exacerbate an already existing excessive allocation. The conclusion that there is excessive land available for residential purposes already contained in the Plan is supported by the population per unit in the County of 2.34. If it is assumed that the 54,089 acres of land available for residential development in the County are developed at a low density of one unit per acre, there will be adequate residential land available for an additional 126,568 people: 54,089 acres, or 54,089 units, x 2.34 people per unit = 126,568 people. Based upon a projected permanent and seasonal population increase by the year 2015 of 46,535 people, there is available for residential use 2.71 times the acreage available to meet future residential needs. In light of the fact that residential property may be developed at much higher densities pursuant to the Plan, assuming development of one unit per acre is conservative, and the number of people that may be accommodated is much higher than 126,568 people. Although not reflected in the Plan, there has been a removal of some property classified as residential property from residential use since the adoption of the Plan. The County has acquired 94 single-family homes on 100 acres designated for Residential Estate use. The 100 acres are located to the east of the Ft. Pierce International Airport and were acquired for noise abatement purposes. The homes on the property have been demolished. An additional 90 homes on land classified Residential Urban will also be acquired and demolished. The State of Florida, through the Conservation and Recreation Lands Program, Chapter 253, Florida Statutes, has also acquired property known as the Avalon tract. The property is located on Hutchinson Island, in the northeast corner of the County. This property had been designated Residential Urban and could have contained approximately 450 units. Even with the removal of the property near the airport and the Avalon tract from the residential property inventory, the Plan contains an excessive allocation of property for residential needs through the year 2015. Based upon the foregoing, data and analysis has not been submitted by the County to justify an increase in residential property or property which may be developed at an increased density. There is already an over-allocation of property for residential land use and, even with the reductions of property near the airport and the Avalon tract, the addition of the Charboneau Property will only result in a Plan with greater over-allocation of land for residential purposes or increased densities. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, and Rule 9J- 5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The ill effects of urban sprawl include inequitable distribution of the costs of development and of providing services, inefficient use of land, unnecessary destruction of natural resources, loss of agricultural lands and increased commuting costs and the resulting pollution. In November 1989, the Department published a Technical Memorandum which describes the Department's policy concerning the definition of "urban sprawl". The Department's policy has been further refined and is reflected in proposed amendments to Chapter 9J-5, Florida Administrative Code. In particular, proposed Rule 9J-5.003(140) and 9J-5.006(6), Florida Administrative Code, are consistent with, and represent, the Department's policy concerning urban sprawl. The Department's policy concerning the definition of "urban sprawl", as set out in the proposed rules and as contained in the November 1989 Technical Memorandum, is consistent with the definition of "urban sprawl" most commonly employed by professional planners. The Department's proposed rules concerning urban sprawl do not have the effect of law. They have not yet been finally adopted. The proposed rules have not been relied upon, however, by the Department or the undersigned as "law" in this case. The proposed rules concerning urban sprawl have only been relied on as an expression of the Department's policy. The Department's policy concerning urban sprawl, as evidenced in the November 1989 Technical Memorandum, and as modified by the Department's proposed rules, is reasonable. The Department's definition of "urban sprawl" contained in the November 1989 Technical Memorandum is: . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development. The Department's definition of "urban sprawl" as evidenced by the proposed rules is as follows: (140) "Urban sprawl" means urban development or uses which are located in rural areas or areas of interspersed rural and generally low- intensity urban uses, and which are characterized by: The premature or poorly planned conversion of rural land to other uses; or The creation of areas of urban develop- ment or uses which are not functionally related to adjacent land uses; or The creation of areas of urban develop- ment or uses which fail to maximize the use of existing public facilities and the use of areas within which public services are being provided. Urban sprawl typically manifests itself in one or more of the following patters: (1) leapfrog or scattered development; (2) ribbon or strip commercial or other development; and (3) large expanses of predominantly low intensity and single-use development. Page 21, DCA exhibit 18. There are several indicators as to when a plan amendment does not discourage the proliferation of urban sprawl. The indicators, which are memorialized in the Department's proposed amendment to Rule 9J-5.006(6)(g), Florida Administrative Code, are whether a plan amendment: Promotes or allows substantial areas of the jurisdiction to develop as low intensity or single use developments in excess of demonstrated need. Promotes or allows significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are suitable for development but can be expected to remain undeveloped for the balance of the planing period. Promotes or allows urban development to occur in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments but which are bordered on either side by rural land uses, typically following highways or surface water shorelines such as rivers, lakes and coastal waters. Fails to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, endangered or threatened species habitat or habitat of species of special concern, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails to protect agricultural areas and activities, including silviculture. This includes active agricultural and silvicultural activities as well as passive agricultural activities and dormant unique and prime farm- lands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Increases disproportionately the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, storm- water management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation bet- ween rural and urban uses. Fails to promote and support infill development and the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in loss of significant amounts of functional open space. Pages 38-40, DCA exhibit 18 Pursuant to the settlement agreement between the County and the Department which led to the determination that the Plan was in compliance, objectives and polices were added by the County to the Plan to insure that the Plan discouraged the proliferation of urban sprawl. The Plan, by directing that development primarily take place within the Urban Service Area, evidences an intent on the part of the County to discourage urban sprawl. See page 1-40 of St. Lucie County exhibit 1 and finding of fact 43. Applying the indicators of urban sprawl to the Charboneau Amendment leads to the conclusion that the Charboneau Amendment does not discourage urban sprawl: The Charboneau Amendment allows the development of 164 acres of land as a low-density, single-use development of one dwelling unit per acre despite the lack of need for any additional residential development in the County. It allows urban development in rural areas at a significant distance from existing urban areas while leapfrogging over less dense and undeveloped land within the Urban Service Area more suitable for such development. It allows urban development in an area that is primarily used for agricultural purposes and, consequently, fails to protect agricultural areas. It fails to maximize the use of existing or future public facilities and services by allowing urban development outside of the Urban Service Area. At some time in the future, the residents of the Charboneau Property can reasonably be expected to expect public facilities and services. It will increase disproportionately the costs in time, money and energy of providing and maintaining facilities and services because the Charboneau Property is located outside the Urban Service Area. It fails to provide a clear separation between rural and urban uses. It fails to promote and support infill development and redevelopment. The Charboneau Amendment does not, by itself, create urban sprawl. No development of the Charboneau Property will occur simply because the Charboneau Amendment is found to be "in compliance" until development orders are issued by the County. These facts do not, however, support the suggestion that the Plan will not fail to discourage urban sprawl as a result of the Charboneau Amendment. The Charboneau Amendment, even though contrary to Objective 1.1.2 and the Policies thereunder which discourage urban sprawl, if found in compliance, will cause the Plan to contain provisions which not only fail to discourage urban sprawl. It will cause the Plan to include provisions which encourage urban sprawl. Inconsistency with Objective 1.1.2 of the Plan. Rule 9J-5.005(5), Florida Administrative Code, requires that comprehensive plan elements be consistent with each other and that future conditions maps reflect the goals, objectives and policies of the plan elements. The Department has alleged, and proved, that the Charboneau Amendment is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 of the Future Land Use Element of the Plan and, therefore, creates an inconsistency within the Future Land Use element. Objective 1.1.2 of the Plan provides the following: Provide in the land development regulations provisions for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban service boundary and promote retention of agricultural activities, preserve natural resources and maintain native vegetative habitats. Policy 1.1.2.4 of the Plan provides the following: The County shall include in its land development regulations a site assessment process to evaluate the potential conversion of existing or designated agricultural land uses to non- agricultural land uses in a rational and orderly manner. such provision shall require as a condition to such conversion that the Board of County Commissioners affirmatively find that the proposed non-agricultural use: is compatible with adjacent land uses; maintains the viability of continued agricultural uses on adjacent lands; contains soils suitable for urban use as defined by the St. Lucie County soil survey; is suitable with existing site-specific land characteristics; is consistent with comprehensive develop- ment plans; will have available the necessary infrastructure concurrent with the anticipated demands for development; and, will avoid the extension of the urban services boundary to create any enclaves, pockets, or finger areas in serpentine patterns. Policy 1.1.2.4 was added to the Plan as part of the settlement entered into between the Department and the County during the review of the Plan. Based upon data contained in the Plan, there were approximately 211,428 acres out of a total of 330,402.7 acres in the County in 1988 devoted to agricultural use. This amounts to approximately 63.9 percent agricultural use. The area outside the Urban Service Area is: . . . recognized for first being appropriate for the production of citrus, cash crops, or ranching activities. . . . Based upon the entire area to the west of the Urban Service Area, including the Charboneau Property and the property surrounding the Charboneau Property, the conversion of the Charboneau Property from Agriculture-2.5 to Residential Estate would create an incompatible use of the Charboneau property. This conclusion is reinforced by consideration of the general impact of the conversion of agriculture lands to non-agriculture lands throughout the State of Florida. Of the State's 10.9 million acres of land, approximately 150,000 to 200,000 acres of farm land are lost to other uses yearly. Contributing to this problem is the fact that, as one parcel is converted to non-agricultural uses, the adjacent property values increase and farmers become discouraged. This impact contributes to the premature conversion of agricultural land. To reduce the impact on adjacent agricultural lands caused by the conversion of agricultural land, a clear demarcation between rural and urban land uses should be designated. The Urban Service Area of the Plan serves this purpose in the County Although the evidence failed to prove that agricultural lands adjacent to the Charboneau Property will no longer be used for agricultural purposes upon the conversion of the Charboneau Property or that such a phenomenon has occurred in the County in the past, concern over such impacts are evidenced and recognized by Objective 1.1.2 and Policy 1.1.2.4. of the Plan. The Charboneau Amendment ignores these concerns. It is, therefore, concluded that the Charboneau Amendment will detract from the continued viability of property outside the Urban Service Area for agricultural uses. Policy 1.1.2.4 requires that a development "maintain the viability of continued agricultural uses on adjacent lands." The Charboneau Amendment, even if the domino impact of the conversion of other acreage from agricultural uses may not occur, does not maintain such viability. The Charboneau Amendment is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 because it allows the conversion of agricultural property in an agricultural area (with two parcels of existing, inconsistent uses), outside the Urban Service Area and at a density that is considered an urban density: The conversion of the Charboneau Property to urban uses is not compatible with adjacent land uses. The conversion of the Charboneau Property to urban uses does not maintain the viability of continued agricultural uses on adjacent lands. The Charboneau Property contains soils that are approximately equally suited for agricultural purposes or residential purposes. Wells and septic tanks are used on subdivisions in the area and similar soils exist in areas being used for the cultivation of citrus. The Charboneau Amendment is consistent with other portions of Policy 1.1.2.4. While Objective 1.1.2 and Policy 1.1.2.4 of the Plan specifically only require that the County adopt land development regulations to govern the conversion of agricultural lands, the Objective and Policy also contain substantive provisions which must be contained in those regulations. Therefore, even though the Charboneau Amendment may not specifically impact the County's compliance with the requirement that it "adopt land development regulations," the substance of the Charboneau Amendment is inconsistent with the substantive requirements of the Objective and the Policy of the Plan and would create an inconsistency in the Plan if found to be "in compliance." Inconsistency with the State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. Goal 16 of the State Comprehensive Plan and Policies 1 and 2 of Goal 16 are as follows: (16) LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. . . . . Policies.-- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Section 187.201(16), Florida Statutes. Converting the Charboneau Property to a non-agricultural classification outside the Urban Service Area is inconsistent with Policy 1 of Goal 16. The existence of the inconsistent uses of Fort Pierce Gardens and Pine Hollow, which were allowed because of their existence before the effective date of the Plan, does not justify further exceptions in the area outside the Urban Service Area designated for rural land uses. The existence of a nonconforming use does not justify further nonconforming uses. Inconsistency with the Treasure Coast Regional Comprehensive Policy Plan. The Treasure Coast Regional Planning Council has adopted a Regional Comprehensive Policy Plan (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for St. Lucie, Indian River, Martin and Palm Beach Counties. In its Statement of Intent, the Department has alleged that the Charboneau Amendment is inconsistent with Regional Plan Policy 16.1.2.2. Goal 16.1.2 of the Regional Plan provides, in part, the following: Land use within the Region shall be consistent with State, regional, and local Future Land Use Maps. . . . Goal 16.1.2 of the Regional Plan goes on to provide for a Regional Future Land Use Map and defines the land use categories to be included in the regional map. Policy 16.1.2.2 of the Regional Plan provides the following policy statement concerning Goal 16.1.2: Future land use maps of government comprehen- sive plans shall be based upon surveys, and data regarding the amount of land required to accommodate anticipated growth, the projected population, the character of undeveloped land, the availability of public services, the ability of government to provide adequate levels of service, and the need for redevelopment. The provisions of Policy 16.1.2.2 are also contained in Section 163.3177(6)(a), Florida Statutes. As found in more detail, supra, the Charboneau Amendment is inconsistent with Policy 16.1.2.2 because of a lack of data necessary to support an increase in residential land or increased density in the County and because it fails to promote redevelopment by infill or revitalization within the Urban Service Area.
The Issue The issues to be determined in this case are whether the amendments to the Martin County Comprehensive Growth Management Plan (CGMP) adopted by Ordinance Nos. 843, 845 (as amended by Ordinance No. 847), 846, 847, 851, 853, and 854 are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes.1/
Findings Of Fact The Parties The Department is the state land planning agency and is charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in the Section 163.3184(1), Florida Statutes. Martin County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Groves Holdings, LLC, is a Florida limited liability company. Groves Holdings, LLC operates a real estate management and investment business in the County that manages the leasing, entitlement, and disposition of lands owned by its related subsidiaries Groves 12, LLC, and Groves 14, LLC. Groves 12, LLC, and Groves 14, LLC, are Florida limited liability companies wholly owned by Groves Holdings, LLC. Groves 12, LLC, owns 2,800 acres of citrus grove. Groves 14, LLC, owns 1,700 acres of land being developed as a residential community and equestrian club known as Hobe Sound Polo Club. The land owned by Groves 12, LLC, is located in the rural area of the County, approximately one mile from the closest boundary of an urban service district. The land being developed by Groves 14, LLC, is also located in the rural area. Groves 14, LLC, also owns 450 acres not being developed that are located partially within the rural area and partially within an urban service district The Groves submitted written comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Donna Melzer and Eliza Ackerly each owns real property in and resides in Martin County. Melzer and Ackerly each submitted comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. MCCA is a not-for-profit Florida corporation incorporated in 1997 for the purposes of conserving the natural resources of Martin County, and maintaining and improving the quality of life for residents of the County. Its members include individuals and corporate and non-corporate entities. A substantial number of its members reside, own property, or operate a business in Martin County. MCCA engages primarily in lobbying, public advocacy, and litigation in Martin County regarding the CGMP. MCCA conducts membership meetings, sends a newsletter to members and others, and sometimes hosts meetings open to the general public. MCCA is also involved in environmental preservation activities in Martin County, including educational meetings, field trips, and lobbying for public purchase of lands for conservation. No evidence was presented to show that MCCA owns property in the County, maintains an office in the County, or holds a business or occupational license. MCCA submitted comments to the County regarding the Plan Amendments, on behalf of its members, during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Hereafter, MCCA, Donna Melzer, and Eliza Ackerly will be referred to collectively as MCCA. The Plan Amendments Section 163.3191(1), Florida Statutes, requires each local government to conduct an evaluation and appraisal of its comprehensive plan every seven years and to prepare an Evaluation and Appraisal Report (“EAR”). Martin County initiated its second evaluation and appraisal process in 2007, culminating in the adoption of an EAR in July 2008. Section 163.3191(10), Florida Statutes, requires a local government to adopt comprehensive plan amendments based on the recommendations in the EAR in a single amendment cycle within 18 months after adopting the EAR. The County’s proposed EAR-based amendments were sent to the Department in September 2009. The Department issued its Objections, Recommendations, and Comments (“ORC”) Report the next month. After considering and responding to the ORC Report, the County adopted Ordinance Nos. 842 through 856 on December 16, 2009, amending all the elements of the CGMP. The Department reviewed the Plan Amendments and determined that a new “Essential Services Nodes” policy of the FLUE adopted by Ordinance No. 845 was not in compliance. The Department determined that all of the other amendments adopted by Martin County were in compliance. The County adopted Ordinance No. 857, which rescinded the Essential Services Nodes policy to which the Department had objected. The decision to rescind the policy was made unilaterally by the County. The rescission was not pursuant to a compliance agreement with the Department. Based on the County’s rescission of the Essential Services Nodes policy, the Department determined that Ordinance No. 845, as amended by Ordinance No. 857, was in compliance. All of the Plan Amendments are text amendments. The Future Land Use Map (“FLUM”) is not changed. Urban Service Districts The CGMP establishes urban service districts (USDs) in the County. There is an Eastern USD and an Indiantown USD. These USDs are subdivided into a primary USD and a secondary USD. About 87 percent of the County’s population resides east of the Florida Turnpike in the Eastern USDs. The Indiantown USDs, which are west of the Florida Turnpike, are separated from the Eastern USDs by more than 20 miles of mostly agricultural lands. The primary purpose of the USDs is to prevent urban sprawl by directing growth to those areas where urban public facilities and services are available or are programmed to be available at appropriate levels of service. The provision of urban public facilities and services is generally limited to USDs. The term “public urban facilities and services” is defined in the CGMP as “regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network.” Under FLUE Policy 4.7A.2, urban development, including commercial, industrial, mixed-use, and urban residential land uses may only be located within the Primary USDs. FLUE Policy 4.7B.1 permits low density residential use (half-acre lots or greater) in the Secondary USD. No urban or suburban uses and no utility services such as water and sewer may extend outside the USD boundaries. Most of the lands outside the Primary and Secondary USDs are designated Agricultural, but there are also lands designated Public Conservation and Public Utilities. MCCA’s Issues Section 1.10 Chapter 1 of the CGMP is entitled “Preamble” and addresses general topics such as the legal status of the CGMP, the continuing evaluation of the CGMP, and amending the CGMP. The Preamble contains no goals, objectives, or policies. MCCA objects to a sentence in Section 1.10 of the Preamble, adopted by Ordinance No. 843, which states, “This Plan shall be adopted by ordinance and shall supersede the 1990 Comprehensive Plan and all related amendments.” MCCA contends that this sentence will create problems and confusion if some of the Plan Amendments are determined to be in compliance, but other amendments are determined to be not in compliance. There is no confusion. The reference to “This Plan” in Section 1.10 is reasonably interpreted to refer to the entire CGMP, as amended by the latest EAR-based amendments that are either already in effect or will become effective following the conclusion of these consolidated cases.2/ Chapter 2 Definitions MCCA objects to several definitions added in Chapter 2 of the CGMP, but the evidence presented does not show an internal consistency or other "in compliance" issue. FLUE Goal 4.7 MCCA objects to the changes in FLUE Goal 4.4G, which would be re-designated Goal 4.7. Existing Goal 4.4G states: 4.4G Goal (encourage urban development in urban service areas) Martin County shall regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available, at the levels of service adopted in this Growth Management Plan. (italics in original) New Goal 4.7 states: Goal 4.7. To regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in this Plan. (italics in original) MCCA contends that the removal of the word “shall” in the new goal “removes the mandatory restriction.” The County did not intend to make a substantive change to Goal 4.4G. In this particular context, the removal of the word “shall” does not require a different interpretation or application of the goal. It is not a substantive change. FLUE Policy 4.12A.2 MCCA’s major objection to Ordinance No. 845 is with new FLUE Policy 4.12A.2. Most of the objections raised by MCCA to other changes in the CGMP are directly related to MCCA's objection to Policy 4.12A.2. MCCA contends that this new policy, which allows “small-scale service establishments” outside the USDs, fails to include reasonable controls on commercial development and will adversely affect agricultural uses and the quality of life of rural residents.3/ Policy 4.12A.2 states: Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural and agricultural uses. (italics in original) Martin County contends that this policy is not a substantive change because nearly the same wording already exists as Section 4.6.D.4 in a part of the FLUE entitled “Implementation Strategies,” and the section was merely re- located and re-designated as Policy 4.12A.2. Section 4.6.D.4 provides: Development outside the urban services district shall be restricted to low intensive development in order to promote cost-effective practices in the delivery of public services. Outside Urban Service Districts development options shall be restricted to low intensity uses including agriculture and agricultural ranchettes, not exceeding one unit per 5 gross acres, and small-scale service establishments necessary to support rural and agricultural uses as provided by section 6.4.A.5.e., Housing Service Zones in the Housing Element. (italics in original) The reference in this policy to Housing Service Zones is an error. Sometime in the past, the County deleted provisions in the CGMP regarding Housing Service Zones, but overlooked this particular reference. Comparing Section 4.6.D.4 with new Policy 4.12A.2, the significant changes appear to be that Section 4.6.D.4 is transformed from a “strategy” to a “policy,” and the new policy no longer ties small-scale service establishments to Housing Service Zones. However, the determination of whether a substantive change was made in the replacement of Section 4.6.D.4 with new Policy 4.12A.2 also requires consideration of Policy 4.4.G.1.e, which states: Martin County shall provide reasonable and equitable options for development outside of Primary Urban Service Districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. Policy 4.4.G.1.e is already designated as a policy and it does not tie small-scale service establishments to Housing Service Zones. Therefore, although Section 4.6.D.4 differs from new Policy 4.12A.2, there is no substantive difference between new Policy 4.12A.2 and existing Policy 4.4.G.1.e. MCCA asserts that Policy 4.12A.2 and Policy 4.4.G.1.e differ substantively because the former does not have the “agricultural land use designation limits on uses allowed” that are in Policy 4.4.G.1.e. However, as shown above, both policies allow for small-scale service establishments that support rural uses as well as agricultural uses. In support of its arguments about small-scale service establishments, MCCA also points to existing FLUE Policy 4.4.G.1.b (re-designated Policy 4.7A.2) and “implementation strategy” 4.6.D.3 (to be deleted) which require commercial uses to be located in the Primary USDs. The policy and implementation strategy that restrict commercial uses to the Primary USDs co- exist in the CGMP with Policy 4.4.G.1.e, which allows small- scale service establishments outside the Primary USDs. Therefore, in whatever manner the County currently reconciles these policies and strategies, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. MCCA refers to the County planning staff's report associated with another proposed plan amendment known as "Becker B-4" in support of MCCA's argument that the amendments at issue in the present case have substantively changed the FLUE with regard to small-scale service establishments. However, none of MCCA's allegations regarding the relevance of the Becker B-4 staff report are borne out. If the Becker B-4 amendment is adopted by the County, it will be subject to its own "in compliance" review. In summary, when all relevant provisions of the CGMP are taken into account, the changes made by Ordinance No. 845 that are related to small-scale service establishments are not substantive changes to the CGMP. MCCA’s claims of internal inconsistency that are based on MCCA’s objections to new Policy 4.12A.2 must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the County did not demonstrate a need for more commercial uses outside the USDs (based on the allowance for small-scale service establishments) must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the allowance for small-scale service establishments constitutes a failure of the County to discourage urban sprawl must also fail as unsupported by evidence of a substantive change. FLUE Policy 4.5F.4 MCCA objects to the changes to Policy 4.5F.4, which allows planned unit developments (PUDs) designed to preserve open space, environmentally sensitive lands, and agricultural land uses. These PUDs can be located in areas currently designated Agricultural and can include residential lots greater than two acres in size if certain criteria are met. MCCA contends that this policy is inconsistent with Policy 4.13A.1, which restricts residential densities in agricultural areas to 20-acre residential lots. The allowance in Policy 4.5F.4 for PUDs with residential lots smaller than 20 acres already exists. Therefore, in whatever manner the County currently reconciles Policies 4.5F.4 and 4.13A.1, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. Furthermore, a PUD created under Objective 4.5F requires a plan amendment. It appears that one of the purposes of this requirement is to re-designate any agricultural lands to a residential future land use designation.4/ FLUE Objective 4.7A MCCA objects to the removal of the word “shall” from existing FLUE Objective 4.4.G.1 (which would be re-designated as Objective 4.7A). MCCA argues that the existing objective prohibits commercial uses outside the Primary USDs and that the removal of the word “shall” will allow commercial uses outside the USDs. However, the objective does not prohibit commercial uses outside the Primary USDs. The objective states that the County “shall concentrate higher densities and intensities of development” in the Primary USDs. To concentrate a land use in one location does not mean to prohibit it elsewhere. It is Policy 4.7A.2 that requires new commercial uses to be located in the Primary USDs. In this particular context, the removal of the word “shall” does not require a different interpretation or application of Objective 4.7A. It is not a substantive change. FLUE Policy 4.9H.2 MCCA objects to new Policy 4.9H.2, regarding residential PUDs, because the policy indicates that commercial uses can be included in a residential PUD, even if the PUD is located outside the Primary USDs. Policy 4.7A.2 requires all new commercial development to be located in the Primary USDs. Objective 4.5F and its associated policies allow for residential PUDs in agricultural areas outside the USDs, but do not indicate that the PUDs in agricultural areas can include commercial uses. Policy 4.9H.2 conflicts with Policy 4.7A.2 and with Objective 4.5F and its associated policies FLUE Policy 4.13A.7.(1)(d) MCCA objects to new Policy 4.13A.7.(1)(d), which allows one “accessory dwelling unit” on a residential lot. Accessory units cannot be sold separately from the primary dwelling unit and are not counted as separate units for purposes of density calculations. MCCA's argument regarding accessory dwelling units assumes that the new policy allows accessory units in the rural areas of the County, outside the Primary USDs. However, Policy 4.13A.7.(1)(d) appears under the heading "General policies for all urban Residential development." The term "urban" is not defined in the CGMP, but there are several FLUE policies that direct urban residential densities to the Primary USDs, such as Policies 4.7A.2 and 4.7A.3. Objective 4.7A directs densities greater than two units per acre to the Primary USDs, which indicates that densities greater than two units per acre are urban densities. In order to maintain internal consistency, accessory units would have to be confined to areas of the FLUM designated for urban residential density. See FLUE Objective 4.13A.7. The County's proposal to not count accessory uses for density purposes was shown to be a professionally acceptable planning practice. Accessory units are similar to residential additions, converted garages, and other changes that can add bedrooms and residents on a residential lot, but which traditionally have been disregarded when calculating density. FLUE Policy 4.13A.8.(5) MCCA contends that changes made to Policy 4.13A.8.(5), regarding Expressway Oriented Transient Commercial Service Centers ("Expressway Centers"), combined with the proposed deletion of Section 4.6.D.3 of the "Implementation Strategies," allows for more commercial development without data and analysis to support the need for additional commercial development. Policy 4.13A.8.(5) creates Expressway Centers at three large Interstate 95 interchange locations in the County as a special land use designation to accommodate the unique needs of people traveling through the County. Section 4.6.D.3 (which ordinance No. 845 would delete) allows a waiver for Expressway Centers from the general requirements applicable to the USDs if an applicant for a waiver meets certain criteria. MCCA contends that the waiver process weighs "the traveling public’s needs against the value of the urban boundary." That is not an accurate description of the waiver process, because none of the criteria mentions the urban boundary. MCCA contends that the waiver process has been replaced with a "market need test" in Policy 4.13A.8.(5) without supporting data and analysis and that the change encourages urban sprawl. Policy 4.13A.8.(5) requires a market feasibility analysis to show that "the uses proposed are warranted by the traveling public they are intended to serve." MCCA presented no evidence on the County's past applications of Section 4.6.D.3 and Policy 4.13A.8.(5). MCCA failed to show how the demonstration required for a waiver under Section 4.6.D.3 is substantively different and more protective than the demonstration required to establish an Expressway Center under Policy 4.13A.8.(5). MCCA failed to show how the creation of Expressway Centers or the specific amendments to Section 4.6.D.3 and Policy 4.13A.8.(5) will lead to more commercial uses outside the Primary USDs, so as to encourage urban sprawl. State Comprehensive Plan MMCA failed to present evidence or argument to demonstrate that any of the Plan Amendments is inconsistent with the State Comprehensive Plan. Other Issues MCCA raised other issues in its petitions for which it did not present evidence at the final hearing. With regard to all the issues raised by MCCA that are not specifically addressed above, MCCA failed to prove an inconsistency. The Groves' Issues The Groves’ principal objection to the Plan Amendments is with the County’s methodology for determining the need for residential dwelling units, which is based in large part on the a residential capacity analysis (RCA) set forth in FLUE Policy 4.1D.4, adopted by Ordinance No. 845. The Groves contend that the RCA overestimates the capacity or supply of dwelling units on vacant lands that can be used to meet projected population growth. Because need is derived from a comparison of supply and demand, the Groves contend that the RCA’s overestimation of supply will always cause the County to underestimate the need for additional dwelling units. FLUE Policy 4.1D.4 provides: The County shall consider the following factors in its residential capacity analysis: The current peak population, based on the University of Florida’s Bureau of Economic and Business Research (BEBR) medium population, shall be used to demonstrate the unit need in the fifteen year planning period; A market factor of 125 percent shall be applied to the unit need; The Eastern Urban Service District and the Indiantown Urban Service District shall be considered separately; Maximum density shall be calculated for Future Land Use categories in which residential development is allowed; Wetland acreage shall be subtracted from the vacant, undeveloped acreage; Because some land will be taken up by non-residential uses such as roads and utilities, a reduction of 8.5 percent shall be calculated to account for such uses. In the past, Martin County used a similar methodology for determining residential need, but it was not a part of the CGMP. New FLUE Policy 4.1D.3 requires that a new RCA be performed every two years. The RCA is to be used to evaluate future plan amendments and future changes to USD policies. The Groves did not dispute the County’s calculation of residential demand, the number of dwelling units needed to serve the projected population through the planning period 2010 to 2025. As stated in FLUE Policy 4.1D.4, demand is based on mid- range population projections from the University of Florida’s Bureau of Economic and Business Research, which is then adjusted by a 125 percent market factor. A market factor is a multiplier that is applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. FLUE Policy 4.1D.4 requires that the Eastern USDs and the Indiantown USDs be considered separately. This requirement is based on an historical pattern of higher population growth east of the Florida Turnpike and the expectation that the pattern will continue into the foreseeable future. The County projected an increase of 17,598 new residents in the Eastern USDs and an increase of 754 in the Indiantown USDs by 2025. When these figures are divided by average persons per household (2.21), the result is a demand for 7,963 dwelling units in the Eastern USDs and 341 dwelling units in the Indiantown USDs. Applying the market factor of 125 percent results in a demand for 9,954 dwelling units in the Eastern USDs, and 426 units in the Indiantown USDs for the 2010-2025 planning period. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, FLUE Policy 4.1D.4 directs that the calculation begin by determining the maximum density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. It is the general practice of the Department to require local governments to use theoretical maximum densities in a need analysis unless there are policies in the comprehensive plan preventing landowners from attaining the theoretical maximum densities. However, like the Department's general practice to accept a market factor no greater than 125 percent, these are not requirements explicitly stated in Department rules from which the Department never deviates. FLUE Policy 4.1D.4 incorporates two limiting factors that prevent the attainment of theoretical maximum densities: (1) wetlands and (2) roads rights-of-way and utility easements. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half of the “lost” density associated with the wetland acreage to the uplands. Therefore, in calculating the acreage of vacant lands that are available for residential development, the RCA subtracts half the wetland acreage. The County also reduces the total vacant land acreage by 8.5 percent to account for the loss of developable acreage due to the presence of road rights-of-way and utility easements within which development is prohibited. After reducing the total acres of vacant lands in the USDs to account for wetlands and for rights-of-way and utilities, the County determined that there is a supply or vacant land capacity of 5,790 dwelling units in the Eastern USDs and 5,335 units in the Indiantown USDs. The County then adjusted these numbers to account for approved residential developments that have not yet been constructed. This adjustment resulted in final calculation of the existing supply in the Eastern USDs of 9,339 dwelling units and an existing supply in the Indiantown USDs of 6,686 dwelling units. The Groves' Critique of the RCA The Groves argue that the RCA overestimates supply by failing to account for other policies of the CGMP that restrict development and prevent a landowner from attaining the theoretical maximum density. Conservation and Open Space Element (COSE) Policy 9.1G.4 requires the preservation of a wetland buffer around a wetland. There was conflicting evidence about whether the County credits the landowner for the acreage set aside as a wetland buffer. The Groves contend that no credit is given and cites Table 4-2 of the FLUE, which indicates that wetland buffer acreage is not subtracted to arrive at the total available acreage that can be developed. The Groves also point to the testimony of a County planner, who stated that the County intended to subtract buffer acreage from vacant land acreage, but ultimately did not do so "based on adamant public comment." However, the County's planning director, Nicki Van Vonno, stated that "[Y]ou do get the full density off of the buffer land." It would be logical for the County to not subtract wetland buffer acreage when calculating residential capacity if the landowner is getting full credit for the buffer acreage. Therefore, it is found that the County allows a full transfer of the density associated with wetland buffer acreage to the uplands. COSE Policy 9.1G.5 requires that 25 percent of upland native habitat on a site be preserved. The landowner is allowed to transfer density from these native upland habitat areas to the unaffected areas of the property. Nevertheless, the Groves contends that COSE Policy 9.1G.5 impairs the ability of landowners to attain the theoretical maximum density. The CGMP also requires a portion of the site be set aside for sufficient water retention and treatment. The RCA does not account for any loss of density caused by water retention and treatment areas. The County had proposed to reduce the theoretical maximum density by 15 percent to account for "surface water management and required preservation,” but abandoned the idea when the Department objected to it as not adequately supported by data and analysis. The evidence presented at the hearing was insufficient to establish that the requirements of the CGMP associated with surface water management and preservation reduces the theoretical maximum density of residential lands by 15 percent. The County has a mixed-use land use category called Commercial-Office-Residential (COR). The County allows only a third of a COR parcel to be developed for residential uses and this practice reduces the theoretical maximum density of COR lands. However, the RCA assumes 100 percent of the COR acreage is available for residential use. The County attempted to justify this discrepancy by pointing out that the limitation of residential uses on COR lands is not incorporated into the CGMP. However, it is an undisputed fact (datum) that the County's practice reduces residential capacity on COR lands. The RCA fails to account for this fact. If the RCA accounted for the limitation of residential development on COR lands, the supply of dwelling units in the Eastern USDs would be reduced by 733 units. FLUE Policy 4.13A.7.(1)(a) establishes a 40-foot height limit countywide which sometimes prevents a landowner from attaining the theoretical maximum density. The RCA does not account for any loss of density caused by building height restrictions. FLUE Policies 4.1F.1 through 4.1F.3 require transitional density zones when land is developed at a higher density than adjacent lands. FLUE Policy 4.1F.2 establishes a zone (or “tier”) abutting the adjacent land, equal to the depth of an existing adjacent residential lot in which development is restricted, to the same density and compatible structure types (e.g., height) as on the adjacent property. The RCA does not account for any loss of density due to the tier policies. Although the landowner is allowed to transfer density to the unaffected portion of the property in the case of some development restrictions imposed by the CGMP, there is not always sufficient acreage remaining to make full use of the transferred density. The Groves' expert witness, Rick Warner, reviewed residential development projects that had been approved or built during the past 15 years in the Eastern USDs and compared the actual number of approved or built units to the theoretical maximum density allowed by the applicable land use designation for the property at the time of approval. Warner determined that, on average, the projects attained only about 45 percent of the theoretical maximum density. The Groves presented the testimony of Morris Crady, who testified that, of the 14 development projects in the County that he was involved in, CGMP policies caused the projects to be developed at 1,285 units fewer than (about 41 percent of) the maximum theoretical density. Comparing the County’s estimated demand for 9,954 dwelling units in the Eastern USDs through 2025 with the County’s estimated supply of 9,339 dwelling units, indicates a deficit of 615 dwelling units. Comparing the County’s estimated demand for 426 dwelling units in the Indiantown USDs through 2025 with the County’s estimated supply of 6,686 dwelling units, indicates a surplus of 6,260 dwelling units. The County decided to make no changes to the FLUM because it believes the projected population can be accommodated with existing land use designations. The Groves argue that, because the RCA overestimates supply, the deficit in the Eastern USDs is actually substantially larger.5/ For example, taking into account the County's policy regarding limiting residential uses on COR lands, the deficit would be 1,348 units in the Eastern USDs. The deficit would be enlarged by the effects of the other factors discussed above that reduce a landowner's ability to attain the theoretical maximum density. The County contends that there is additional residential capacity outside the USDs that should be considered. The County also points to the large surplus of available dwelling units in the Indiantown USDs. The County asserts that there is excess supply to meet the need when all the available dwelling units in the County are considered. These other considerations, however, are not a part of the RCA and, therefore, are in conflict with the RCA. Acres vs. Dwelling Units The Groves assert that County's determination of residential does not identify the amount of land needed for each category of land use as required by law, but, instead, expresses need solely in terms of total dwelling units. The Department has accepted residential need analyses expressed in dwelling units. Dwelling units can be converted into acreages, but only if one is told what density to apply. A local government must determine how many dwelling units it wants in each land use category in order to convert a need expressed in total dwelling units into a need expressed in acreages. Martin County believes that it has a sufficient supply of dwelling units to meet the projected population through the planning period. Apparently, the County is also satisfied with the existing size and distribution of future land use categories as depicted on the FLUM. The existing vacant land acreages for each land use category, set forth in the CGMP, represents the amount of land in each land use category that the County believes is needed to meet the projected population. However, there is an imbalance in the various types of residential land uses in the Eastern USDs. For example, there are only 13 acres of high density residential land and 57 acres of medium density residential land remaining in the Eastern USDs. In contrast, there are 2,950 acres of rural residential lands. The County has acknowledged that its past emphasis on low-height and low-density has contributed to a lack of affordable housing. The Treasure Coast Regional Planning Council noted that the small amount of vacant land in the County available for medium and high residential development contributes to the lack of affordable housing in the County. The Plan Amendments include policies which are designed to address the imbalances in land uses and the lack of affordable housing. These policies include permitting accessory dwelling units for urban residential development; allowing a 10 du/ac density bonus and an affordable housing density bonus in Medium Density Residential developments; reducing the criteria for an affordable housing density bonus in High Density Residential developments; and reviewing residential capacity in the Indiantown USDs. Commercial Need There is no state-wide standard for the amount of commercial, industrial, institutional, conservation, or agricultural lands that a local government must identify in its comprehensive plan in order to accommodate its projected population. The County acknowledges that there is a deficit of commercial land necessary to accommodate economic needs, but no changes in the FLUM are proposed as part of these EAR-based amendments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Plan Amendments are “in compliance,” except for the following policies adopted by Martin County Ordinance No. 845, which the Department should determine are not "in compliance": FLUE Policy 4.1D.4; and FLUE Policy 4.9H.2. DONE AND ENTERED this 3rd day of September, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2010.
The Issue The issue in this case is whether an amendment to the future land use map of the Martin County comprehensive plan, Amendment No. 98-3, is "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes (2000).
Findings Of Fact The Parties. Hobe Sound Citizens Alliance, Inc. (hereinafter referred to as the "Alliance"), is a not-for-profit corporation organized under the laws of Florida. The Alliance was organized in July 1998 primarily to respond to proposed land use designation changes for the property that is the subject of this proceeding and for other property. The Alliance has three officers (a President, Secretary, and Treasurer) and an eight-member Board of Directors. The officers and directors of the Alliance all reside in Martin County, Florida. The members of the Board of Directors are from different neighborhoods in Martin County. The Alliance maintains a mailing list of approximately 500 individuals who are considered "members" of the Alliance. These individuals have all expressed interest in the activities of the Alliance, but have not taken any formal steps to join the Alliance, such as paying dues or completing an application for membership. In fact, the Alliance does not collect dues or have a membership application. Petitioner, Mary A. Merrill, is an individual who resides in an area of unincorporated Martin County, Florida, known as "Hobe Sound." Ms. Merrill serves as President of the Alliance. During the process of adopting the amendment which is the subject of this matter, Ms. Merrill and the Alliance made comments and objections. Respondent, Martin County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is located on the east coast of Florida. The County is bordered on the east by the Atlantic Ocean, on the south by Palm Beach County, on the north by St. Lucie County, and on the west by Lake Okeechobee and a portion of Okeechobee County. Intervenor, Hobe Sound Land Company, Ltd. (hereinafter referred to as the "Land Partnership"), is a limited partnership organized under the laws of Florida. The Land Partnership's general partner is Hobe Sound Land Company, Inc. (hereinafter referred to as the "Land Company") and the limited partners are a number of trusts organized for the benefit of various members of the Reed family. The Land Partnership is the owner of the property which is the subject of this proceeding (hereinafter referred to as the "Subject Property"). The County's Comprehensive Plan. General The County has adopted a comprehensive land use plan as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). The Martin County Florida Comprehensive Growth Management Plan 1999/00 (hereinafter referred to as the "Plan"), has been determined to be "in compliance" as those terms are defined in the Act. The Future Land Use Element The Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE"), consisting of the following: Section 4-1, "Background Information"; Section 4-2, "Analysis of Land Use Features"; Section 4-3, the "Future Land Use Map and Map Series"; Section 4-4, "Goals, Objectives and Policies"; Section 4-5, "Performance Standards"; and Section 4- 6, "Implementation Strategies." Sections 4-1 and 4-2 consist of what the County refers to as "narrative" sections which the County gives less weight to in determining whether an amendment to the Plan is "in compliance" than it gives Section 4-4, which contains the Goals, Objectives, and Policies of the Plan. These narrative sections of the Plan, however, are not "data and analysis." They were adopted as a part of the Plan. See the second unnumbered page of the Plan. The FLUE establishes 13 separate and distinct land-use categories. These land-use categories determine the uses to which property subject to the Plan may be put. The Plan's Future Land Use Map and Map Series (hereinafter referred to as the "FLUM"), depicts all property subject to the Plan and depicts the land use category assigned to all property in the County. Among the land use categories established in the FLUE pertinent to this proceeding is the "Institutional" land use category. To distinguish this category from the "Institutional- County" land use designation of the FLUE, the category is referred to as the "General Institutional" category. Property designated as General Institutional is subject to the following sub-categories or intensities of use: "retirement home, churches, schools, orphanages, sanitariums, convalescent, rest homes, cultural organizations, military, colleges, hospitals, federal, municipal, utilities, and rights- of-way." Section 4-4.M.1.h.(3). of the FLUE, provides the following Policy governing the use of General Institutional property: General Institutional - The General Institutional category accommodates public and not-for-profit facilities such as, but not limited to schools, government buildings, civic centers, prisons, major stormwater facilities, fire and emergency operation center facilities, public cemeteries, hospitals, publicly owned public water and sewer systems, dredge spoil management sites, and airports. Investor owned regional public water and sewer systems and private cemeteries may be allowed in General Institutional. . . . While Institutional use is reserved for the above uses, this shall not prohibit for- profit medical offices and other ancillary facilities owned by a non-profit hospital as long as they are part of a Planned Unit Development. . . . . . . . The Plan also establishes land use categories in the FLUE for the residential use of property. All land which is designated for residential development on the FLUM is subject to Section 4-4.M.1.e. of the FLUE: The Land Use Map allocates residential density based on population trends; housing needs; past trends in the character, magnitude, and distribution of residential land consumption patterns; and, pursuant to goals, objectives, and policies of the Comprehensive Growth Management Plan, including the need to provide and maintain quality residential environments, preserve unique land and water resource and plan for fiscal conservancy. There are seven types of designated residential land use categories created by the Plan. Those uses include the following: 10 units per acre for "high density;" 8 units per acre for "medium density;" 5 units per acre for "low density residential;" 2 units per acre and 1 unit per acre for "estate density;" .5 units per acre for rural areas. There is also a "mobile home density" category. The lowest density of .5 units per acre is reserved for those areas that are designated as rural. The estate density categories are used for areas are located "generally on the fringe of the urban service districts and generally are not accessible to a full complement of urban services." Sections 4-4.M.1.e.(1) and (2) of the Plan. Of primary pertinence to this proceeding is the residential land use designation of "Low Density Residential." Residential land designated "Low Density Residential" is limited by Section 4-4.M.1.e.(3). of the FLUE as follows: Low Density Residential Development. The low density residential designation is reserved for land accessible to existing urban service centers or located in the immediate expansion area. Densities permitted in this area shall not exceed five (5) units per gross acre. Review of specific densities shall be directed toward preserving the stability and integrity of established residential development and toward provided equitable treatment to lands sharing similar characteristics. Design techniques such as landscaping, screening and buffering shall be employed to assure smooth transition in residential structure types and densities. Generally, where single family structures comprise the dominant structure type within these areas, new development on undeveloped abutting lands shall be required to include compatible structure types on the lands immediately adjacent to existing single family development. Excessive Residential Property and the Active Residential Development Preference Planning System. Section 4-2.A.6.c. of the Plan recognizes that the County has designated an excessive amount of land for residential use. This section of the Plan indicates that, at the time the Plan was adopted, there was a projected need for 26,231 acres of land to accommodate the projected population of the County to the Year 2005. It also indicates that, as of the date of the Plan, 35,834 acres of vacant land had been designated for residential use, well in excess of the amount of land necessary to meet demand. Despite the requirements of the Act and Chapter 9J-5, Florida Administrative Code, requiring appropriate planning for residential needs within a local government's jurisdiction, the Plan was approved by the Department as being "in compliance" with the designation of an excessive amount of land for residential use in the County. Instead of requiring strict compliance with the provisions of the Act and Chapter 9J-5, Florida Administrative Code, dealing with planning for future residential land use needs, the County and the Department entered into a Stipulated Settlement Agreement specifying that the Plan include a requirement that the County undertake the collection of more current land use data and refine the various land use predictive factors it had been using. The Stipulated Settlement Agreement also required that the County institute an Active Residential Development Preference Planning System (hereinafter referred to as the "ARDP System"), to monitor the timing and location of residential development in the County. Section 4-2.A.8. of the Plan provides a Policy dealing with future residential land use requirements for the County. The Policy reports the over-allocation of vacant land designated for residential uses in the County and the need for the ARDP System. The Policy specifically provides, in part: While the current pattern on the Future Land Use Map will remain as is, an active residential development "125% test" will be used in conjunction with location and land suitability requirements in the review and approval of future land use and/or project requests. These requirements shall include, at a minimum, location within the Primary, or Secondary Urban Service District; consistency with the Capital Improvement Element; protection of natural resources; and adequate provision of facilities and services at the adopted level of service. The Policy goes on to provide that residential development in the County will be maintained at 125 percent capacity through the ARDP System and describes other measures to reduce the amount of excessive residential property to be developed in the County. Section 4-4.A.6. of the Plan establishes a Policy requiring that the County implement the ARDP System by May 1991. Consistent with Section 4-4.A.6. of the Plan, the County has adopted the ADRPP System. Environmental Protection Considerations in the FLUE Section 4-2.A.6.d. of the Plan recognizes that residential use of land located near or on the coast can threaten the "preservation of the very attributes of the area which make it attractive for growth." Therefore, the Policy provides that any such development is to be planned to minimize the threat by "assuring that the environmentally sensitive and threatened habitats are preserved." The Policy also provides: Certain areas in Martin County are recognized and beginning to be identified by federal, state and local programs as environmentally sensitive. These areas provide special value in producing public benefits, including: recreational opportunities, life support services, tourism, commercial and sport fishing, scenic values, water purification, water recharge and storage, and sensitive habitats critical to the survival of endangered wildlife and plants. Urban development in or adjacent to environmentally sensitive areas can significantly reduce their environmental values. Additionally, there are important public health concerns associated with development in these areas, particularly in relation to potable water and waste disposal in low lying areas. . . . Section 4-2.A.6.f. of the Plan recognizes the importance of natural vegetation. The Policy also recognizes that urban development removes or alters the County's natural vegetation. Coastal Management Element Section 8.4 of the Plan establishes the Goals, Objectives, and Policies for the Coastal Management Element of the Plan. The area subject to this Element is described on maps adopted as part of the Element, including the map depicted in Figure 8-1. The Subject Property is not located within the coastal management area established by the Element. Section 8.4.A.2.a. of the Plan provides "land use decisions guidelines" requiring a consideration of the impacts of development on fish, wildlife, and habitat, including cumulative impacts. These guidelines, however, apply to development within the coastal management area established by the Plan. Conservation and Open Space Element Chapter 9 of the Plan establishes the Conservation and Open Space Element. The Goals, Objectives, and Policies of the Element are set out in Section 9-4 of the Plan. Section 9-4.A. of the Plan establishes the following Goal: The goal of Martin County is to effectively manage, conserve and preserve the natural resources of Martin County giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries and wildlife with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon. Section 9-4.A.2.a. of the Plan requires that the County continue to enforce and improve its Wellfield Protection Ordinance. The Wellfield Protection Ordinance is intended to regulate land use activities within the zones of influence of major wellheads. Section 9-4.A.2.b. of the Plan provides the following: New potable water wells and wellfields shall be located in areas where maximum quantities of regulated materials (e.g. hazardous and toxic materials) do not exceed the proposed criteria of the Wellfield Protection Ordinance. At the time future wellfield locations are identified, establishment of incompatible land uses within the zones of influence of such wells shall be prohibited. Objective 9-4.A.9. of the Plan provides for the protection and enhancement of wildlife and habitat. Policy 9- 4.A.9.a. of the Plan provides the following: Land use decisions shall consider the effects of development impacts on fish, wildlife and habitat and the cumulative impact of development or redevelopment upon wildlife habitat. In cases where rare, endangered, threatened or species of special concern are known to be present, a condition of approval will be that a preserve area management plan be prepared at the time of site plan submittal. . . . To ensure adequate protection, protected plants and animals, which cannot be provided with sufficient undisturbed habitat to maintain the existing population in a healthy, viable state on site, shall be effectively relocated in accordance with local, state and federal regulations. Potable Water Service Element Chapter 11 of the Plan establishes a Potable Water Service Element. The Goals, Objectives, and Policies of this Element are contained in Section 11-4. Section 11-4.A.5 of the Plan provides that, by 1991, the County was to establish programs to conserve and protect potable water resources within the County. The specific components of the programs are provided. None of those provisions are relevant to this matter. Drainage and Natural Groundwater Aquifer Recharge Element Chapter 13 of the Plan establishes a Drainage and Natural Groundwater Aquifer Recharge Element. The Goals, Objectives, and Policies of this Element are contained in Section 13-4. Section 13-4.A.1. of the Plan establishes the following Objective: Martin County will maintain existing ground water and surface water quality, improve areas of degraded ground water and surface water quality and prevent future contamination of ground water supply sources. Section 13-4.A.2. of the Plan establishes the following Objective: "Enhance the quantity of ground water recharge and maintain desirable ground water levels." The Objectives, and the Policies established to carry them out, recognize the significance of ground waterrecharge and groundwater levels in the County. Preservation of groundwater recharge and groundwater levels is a significant goal of the County. None of the Policies established to carry out the foregoing Objectives specifically eliminate the use of vacant land located near wells for residential purposes. Plan Amendment Adoption Procedures Procedures for the adoption of amendments to the Plan are established in Section 1.11, "Amendment Procedures," of the Plan. Section 1.11.C.2. of the Plan provides the following procedures for evaluating changes to the FLUM: In evaluating each land use map amendment request, staff begins with the assumption that the 1982 Land Use Map, as amended, is generally an accurate representation of the Board of County Commissioners and thus the community's intent for the future of Martin County. Based on this assumption, staff can recommend approval of a requested change providing consistency is maintained with all other Elements of this Plan if one of the following four items is found to be applicable. That past changes in land use designations in the general area make the proposed use logical and consistent with these uses and there is adequate availability of public services; or That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. That the proposed change would meet a necessary public service need which enhances the health, safety or general welfare of County residents. In the event that staff can not make a positive finding regarding any of the above items, then staff would recommend denial. (Emphasis added). The Plan requires that the Director of the County's Growth Management Department, after review of a proposed amendment, submit recommendations to the Local Planning Agency for consideration. The Local Planning Agency is required to certify its findings and recommendations to the Board of County Commissioners of Martin County (hereinafter referred to as the "Board"). Miscellaneous Provisions of the Plan. Section 4-2.A.6.e. of the Plan deals with agricultural use and vacant land. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.A.1.a. of the Plan establishes a Policy that requires that the County revise its Land Development Regulations in existence at the time the Plan was adopted. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.E.1. of the Plan requires that the County revise its Land Development Code by July 1990. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. The County's Sustainable Communities Designation Agreement. The County and the Department of Community Affairs (hereinafter referred to as the "Department"), entered into a Sustainable Communities Designation Agreement (hereinafter referred to as the "Designation Agreement"). The Designation Agreement was entered into pursuant to Section 163.3244 of the Act. Pursuant to the Designation Agreement, the Department designated the County as a "sustainable community." Among other things, the designation of the County as a sustainable community eliminates the need for the County to have the Department review and comment on amendments to the Plan that affect areas within the urban growth boundary or "Primary Urban Services District" created by the Plan. The Subject Property. The Subject Property is a parcel of real property located in the Hobe Sound area of unincorporated Martin County. The Subject Property consists of approximately 24.5 acres of land. The land use designation for the Subject Property on the FLUM is General Institutional. The Subject Property is undeveloped, vacant land. It is comprised of sandy soils, native upland scrub habitat with native Sand Pine groundcover. The Subject Property was described in an Executive Summary of the proposed plan amendment considered by the County as follows: The parcel is located in an area considered to be one of the last contiguous large areas of native upland scrub habitat in Florida. Groundcover is almost entirely native Sand Pine with some primitive trails and small areas of disturbed land. Endangered species found on the parcel include the Florida Scrub Jay and Gopher Tortoise. Sand Pine is considered to be endangered, unique or rare and the Comprehensive Plan policy 9- 4.A.7.f(2) states that "Where possible, increased conservation (twenty-five (25) percent of the total upland area) of native upland habitats which are determined to be endangered, unique or rare in Martin County, or regionally rare will be required by Martin County." The Subject Property is bounded on the north by Saturn Avenue, a two-lane residential street; on the south and west by undeveloped land; and on the east by U.S. Highway One, a multi- lane divided highway. The property to the north is designated Low Density Residential; the property to the east is designated for commercial uses; and the property to the south and west is designated General Institutional. While located relatively close to the Intercoastal Waterway, the Subject Property is not located on the "coast." The Subject Property was previously owned by the Hobe Sound Water Company, a privately owned water utility. At the request of Hobe Sound Water Company, the Subject Property was designated as General Institutional. No wells currently are located on the Subject Property. The Subject Property was acquired from the Hobe Sound Water Company by the Land Partnership. The undeveloped land located to the south of the Subject Property is owned by South Martin Regional Utilities (hereinafter referred to as "SMRU") and is utilized for a water plant and wells. SMRU acquired this land and the remainder of the land used by the Hobe Sound Water Company from the water company. There are five wells located on the property to the south of the Subject Property. The property to the west of the Subject Property is also owned by SMRU but is not being utilized for wells. The property acquired by SMRU was, and remains, designated as General Institutional. The Subject Property serves as a significant ground water recharge area because of the porous nature of the soils of the Subject Property. The Subject Property is located within the Primary Urban Services District of the Plan. The Subject Amendment and Its Review. The amendment at issue in this proceeding was initiated by the Land Partnership after it acquired the Subject Property from the Hobe Sound Water Company. At the time of the acquisition of the Subject Property, the Land Partnership knew or should have known that it was designated for General Institutional use. The Land Partnership requested a change in the land use designation for the Subject Property on the FLUM from General Institutional to Low Density Residential or "the most appropriate land use designation." The proposed amendment was reviewed by the staff of the County's Growth Management Department. Among other things, the staff considered whether any of the four items specified in Section 1-11.C.2 of the Plan applies to the amendment. The staff determined that the first and fourth items listed in finding of fact 41 did not apply, that the second item was somewhat applicable, and that the third item applied to the amendment. The proposed amendment was also reviewed by the Treasure Coast Regional Planning Council (hereinafter referred to as the "TCRPC"). Comments concerning the proposed amendment were prepared by the TCRPC, but were withheld because review by the TCRPC is not required due to the sustainable communities designation for the County. The draft comments of the TCRPC, however, raised objections to the proposed amendment due to concerns over the potential endangerment to the wellfields in the area and the potential destruction of critical habitat and vegetation. No copy of the TCRPC's regional plan was offered in evidence in this case. Nor did anyone associated with TCRPC testify about the draft comments. The Department also informally reviewed the proposed amendment. Rather than prepare an Objections, Comments, and Review report on the proposed amendment, the Department prepared informal comments, which it provided to the County. Those comments were responded to by the County. Hearings to consider the proposed amendment were conducted by the Local Planning Agency. On January 21, 1999, the Local Planning Agency voted to recommend that the proposed amendment not be adopted. The proposed amendment was designated Amendment No. 98-3 (hereinafter referred to as the "Amendment"). The Amendment was adopted by the Board on September 28, 1999, as a part of Ordinance No. 553. The evidence failed to prove that any relevant procedure for adopting the Amendment was violated by the County. The Amendment changed the land use designation for the Subject Property from General Institutional to Low Density Residential on the FLUM. This designation would allow the development of the Subject Property for a maximum of 122 residential units. Data and analysis supporting a potential increase of 122 units of additional residential property did not exist when County adopted the Amendment. Nor does such data and analysis exist now. ARDP System Data. Since the implementation of the ARDP System the County has been collecting and analyzing data concerning residential development in the County. No timely annual update of that data and analysis had been prepared prior to the adoption of the Amendment. The most recent data available was from 1995. During the adoption process for the Amendment, at the request of a member of the Board, an ad hoc report containing data and analysis concerning residential development in the County was prepared and presented to the Board. A full and detailed report was prepared subsequent to the adoption of the Amendment. The report, the ARDP Memorandum of June 7, 2000 (hereinafter referred to as the "ARDP Memo"), was reviewed and approved by the Board. The report was also received in evidence during this de novo proceeding and has been fully considered in preparing this Recommended Order. Pursuant to the ARDP Memo for the five-year period 2000-2004, there is a need for 6,252 residential units needed to serve population increases. The 125 percent cap of the ARDP System on new residential units allowed in the County is 7,816 units. This amounts to an additional 1,564 units authorized by the ARDP System over the actual number of units needed based upon population projections. The number of approved/unbuilt units and other offsets against the number of allowed new residential units for the County during this period totals 7,015 units. Consequently, there are 801 units (7,816 minus 7,015) available for development through the end of 2004. These available units are more than sufficient to cover the additional units which may arise as a result of the development of the Subject Property pursuant to the Amendment. For the five-year periods of 2005-2009 and 2010-2014, there are 6,314 and 6,578 units available for development through the end of these periods, respectively. Despite the foregoing, the approval of an addition of 122 units of residential property will increase an already excessive designation of property for residential use. The Impact of the Amendment. The most significant impact of the Amendment is to further increase the amount of land allocated for residential use in the County. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the amount of the increase in the amount of land allocated for residential use in the County. The Amendment will also negatively impact sensitive habitat for endangered species of plants and animals. Development of the Subject Property, however, as Low Density Residential or General Institutional has the potential for the same general negative impact on sensitive habitat. That negative impact is not inconsistent with what the Plan allows. The Amendment will not have a negative impact on the role of the Subject Property as a ground water recharge area or the availability of potable water in the County. Any development of the Subject Property will be subject to County and South Florida Water Management District regulations requiring that there be no effect on the quality or quantity of ground water in and around the Subject Property as a result of development. The only action that will preserve the environmental features of the Subject Property and its role as a recharge area would be to keep the property undeveloped. Neither the current land use designation of General Institutional nor the proposed land use designation of Low Density Residential will ensure that the Subject Property remains undeveloped. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the negative impacts of the environmental features of the Subject Property and its role as a recharge area. The evidence failed to prove that the Amendment constitutes "urban sprawl" as defined in the Plan. The Need for a FLUM Amendment. In order for the Amendment to be approved, since it is an amendment to the FLUM, it must be shown that one of the four items listed in Section 1.11.C.2. of the Plan is met. The evidence proved, and the parties agreed, that the first and fourth items listed in Section 1.11.C.2. of the Plan do not apply to this Amendment. The remaining two items of Section 1.11.C.2. of the Plan are: That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. While there has been an increase in the amount of development to the north of the Subject Property, the area immediately around the Subject Property has not changed. The evidence failed to prove that any change in the character of the area surrounding the Subject Property "has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics. . . ." The second item listed in Section 1.11.C.2. of the Plan has not been met. The County's determination that the remaining item, that the proposed change would correct what appears to be an inappropriately assigned land use designation, is based upon the fact that the current owner, the Land Partnership, is not the type of entity the Plan identifies as an appropriate owner of General Institutional property. Section 4-4.M.1.h. of the Plan provides the following concerning the ownership of General Institutional designated property: Except for investor owner public water and sewer systems and private cemeteries, Institutional land shall be owned by public agencies or non-profit service providers. As a consequence of the foregoing, the only use to which the Land Partnership may put the Subject Property under its current land use classification would be as a cemetery, public water, or sewer system. The latter two uses are not practicable uses for the Subject Property. Although the fact that the Land Partnership knew or should have known of the land use category of the Subject Property and the limitation of the uses to which it could put the property before it purchased it, it still appears reasonable to conclude that the third item of Section 1.11.C.2. of the Plan applies to the Amendment. I. Petitioners' Challenge. On October 28, 1999, the Alliance and Ms. Merrill, jointly filed a Petition for Administrative Hearings with the Division challenging the Amendment pursuant to Section 163.3244(5)(a), Florida Statutes. Petitioners requested a formal administrative hearing pursuant to Sections 163.3187(3)(a) and 120.57, Florida Statutes. On February 1, 2000, Petitioners filed an Amended Petition for Administrative Hearing. Pursuant to the Amended Petition, Petitioners alleged that the Amendment is inconsistent with the requirements of Sections 163.3177 and 163.3180 of the Act, the TCRPC's strategic regional policy plan, and portions of Chapter 9J-5, Florida Administrative Code. Petitioners also alleged in the Amended Petition that the Amendment is inconsistent with Sections 163.3161, 163.3167, 163.3194, and 163.3244 of the Act. These allegations are not relevant to the determination of whether the amendment is "in compliance" as those terms are defined in the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Commission enter a final order finding that the Amendment is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of February, 2001. COPIES FURNISHED: Virginia P. Sherlock, Esquire Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995 David A. Acton Senior Assistant County Attorney Martin County Administration Center 2401 South East Monterey Road Stuart, Florida 34996-1197 Raymond W. Royce, Esquire Carrie Beth Baris, Esquire Holland & Knight LLP 625 North Flagler Drive, Suite 700 West Palm Beach, Florida 33401-3208 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue Whether Comprehensive Plan Amendment 96-2 adopted by the County on September 24, 1996, is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. Respondent, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto pursuant to Part II, Chapter 163, Florida Statutes. Petitioners, T. D. Farnsworth, Russell E. Weir, Jack Burchill, Linda Latham, and Terry Forsman, own property and reside within Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development, Inc. (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the county, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group. By stipulation of the parties, Petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Pringle Communities, Inc. (Pringle), is a Florida corporation and the potential developer of the subject property of this proceeding. Pringle submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. The amendment On May 13, 1996, the County adopted plan amendment 96A01 by Ordinance No. 96-17. On November 7, 1996, the DCA published a Notice of Intent to find the amendment in compliance. Amendment 96A01 amended the Sumter County Comprehensive Plan's (the Plan) Future Land Use Map (FLUM) to revise the land use designations on approximately 510 acres of land. Specifically, the plan amendment converted the land use designation for the Pringle parcel from an Agricultural to a Planned Unit Development (PUD) land use, limited to 499 residential units. The plan amendment also revised the FLUM by extending the Urban Expansion Area to include the Pringle parcel and an adjacent parcel immediately to the north of the Pringle parcel, which had apparently been inadvertently omitted from the Urban Expansion Area in the final draft of the Plan. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related to issues, a preliminary environmental assessment, a population and housing analysis, a concurrency analysis, building permit information and analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis submitted up until the time the DCA issued its Notice of Intent to find amendment 96A01 in compliance, and at the final hearing, collectively demonstrate that the amendment is appropriate for the designated area. Is the Plan Amendment in Compliance? Petitioners have alleged the amendment is not in compliance for the following reasons: (a) the amendment fails to protect agricultural lands; (b) the amendment encourages urban sprawl; (c) the future land use map fails to reflect the goals, objectives, and policies of the Plan; (d) there is no demonstrated need for 510 acres of PUD land use; (e) the amendment does not demonstrate compatibility with adjacent agricultural and rural residential land uses; (f) the amendment does not provide for concurrency for adopted levels of services pursuant to the Plan; (g) the amendment does not comply with stormwater and drainage requirements of the Plan; (h) the amendment fails to satisfy the capital improvements element of the Plan; and (i) affordable housing needs are not met. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 510 acres of land designated on the FLUM as agricultural land use will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by Plan Objective 7.1.2 and Rule 9J-5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insure(s) retention of agricultural activities." If the plan amendment fails to adequately protect adjacent agricultural areas, the cited rule considers this failure to be one of the thirteen primary indicators that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, Plan Objective 7.1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly, and logical fashion based on need and suitability. The agricultural lands being converted to urban land uses as a result of the plan amendment are appropriate for conversion. The Plan designates the Pringle parcel as an area appropriate for urban development. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. In fact, the Plan contains a series of maps which specifically locate agricultural areas appropriate for conversion to urban uses, and the Pringle parcel is located within such designated areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the requirement within the Plan that infrastructure be in place concurrent with development. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. Because Rule 9J-5.006(5)(g)5., Florida Administrative Code, deals exclusively with "adjacent" agricultural land, the conversion of any agricultural uses on the Pringle parcel is not relevant to the cited rule. The Plan requires the County to retain a minimum of ninety percent of its land area in rural (agriculture, timberland, and vacant) and conservation land use. The County has no "mining" zoning or land use designation, but includes mining as an agricultural use. Including the land covered by mining permits in the County, more than ninety percent of the County's land area is maintained in rural (agriculture, timberland, and vacant) and conservation land use, even after the adoption of the amendment. In view of the above, Petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land, either on or adjacent to the Pringle parcel. Urban sprawl In the same vein, Petitioners contend that the amendment fails to discourage urban sprawl because it converts 510 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, which have allegedly been violated. Petitioners also allege the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references Plan Policy 7.1.2.5(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural land use area, it must score at least 50 points, applying a point system based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD fails to score 50 points, it is deemed to encourage urban sprawl and would not be approved by the County. Amendment 96A01 scored 100 points, well in excess of the 50-point threshold. While the point system does not apply directly because the amendment alters the Urban Expansion Area to include the Pringle parcel, it is evidence that the amendment does not fail to discourage urban sprawl. In addition to satisfying Plan Policy 7.1.2.5.(a), the plan amendment is consistent with Future Land Use maps VII-18a and VII-18c, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the Plan data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18a demonstrates that the land included in the plan amendment has only slight limitations in regard to urban sprawl. If the amendment allows a strip development, this is another of the thirteen primary indicators that an amendment may fail to discourage urban sprawl. The evidence shows, however, that the subject property is not a strip development because it is not a linear development that runs parallel to a highway. Finally, the PUD mixed land use category adopted by the plan amendment is a planning method specifically recognized by Rule 9J-5.006(5)(1), Florida Administrative Code, as a method of discouraging urban sprawl. Indeed, the rule provides in part that: mixed use development . . . will be recognized as [a method] of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Because the PUD adopted by the amendment is designed to provide a mix of land uses, the amendment does not fail to encourage an attractive and functional mix of uses. Given the above, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. Demonstrated need and adequate data Petitioners allege the plan amendment "fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege amendment 96A01 "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Section 163.3177(10)(e), Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. Demonstrated need is only a subset of one of the thirteen primary indicators that an amendment or plan may fail to discourage urban sprawl. Rule RJ-5.006(5)(g)1, Florida Administrative Code, lists as one of the thirteen indicators whether the amendment: [p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. (Emphasis added) The thirteen primary indicators are evaluated as a whole, not as a "one strike and you're out" list, to determine one aspect of compliance -- whether the amendment fails to discourage the proliferation of urban sprawl. "Multipliers" are a planning tool generally utilized by professional planners to aid in determining the need for additional allowable densities. Multipliers are generally expressed as a percentage or ratio of the estimated population in a given time period compared with the total residential units allowed by the comprehensive plan. For example, a multiplier of 2.0 would mean that, over the particular planning time frame, there existed twice as many residential units allocated as the population projections estimated would be utilized. At hearing, Petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended (a) seasonal population and planned federal prison expansions contained within the approved Plan were in error and therefore should not be used to support the amendment; (b) the agricultural land use acreage should be included in the multiplier calculation; and (c) the PUD maximum allowable density of eight units per acre should be used to calculate the multiplier rather than the approved density of just under one unit per acre. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations, and Comments (ORC) report and preparation for the hearing in this matter. The ORC report recommended that the County provide data and analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population. Based on historic data, the County utilized a multiplier which had been calculated in 1995 in Case No. 94-6974GM, judicial recognition of which was taken in this hearing. In that case, the multiplier depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately eighty-seven percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In an effort to provide a more accurate multiplier, prior to the hearing, utilizing data available when the amendment was adopted, the County recalculated the multiplier and determined the updated multiplier to be 1.3. The County's calculation of a multiplier excludes agricultural land from consideration, in order to protect agricultural lands as required by the Plan. In some rapidly urbanizing jurisdictions vacant land labeled agricultural or rural on a future land use map may simply be future development land. However, the County has as one of its primary land use goals to protect agricultural land. To include agricultural land use acreage in the multiplier calculation could lead to an under- allocation of density which would jeopardize agricultural land by encouraging development in the very areas the plan is designed to protect. The DCA has utilized multiplier calculations in other counties that do not include agricultural lands. Therefore, because of the unique situation of the County and its land use plan's emphasis on protecting agricultural land, in this case it is professionally acceptable to exclude agricultural land from the multiplier calculation. In the County, PUD is a land use category rather than merely a zoning category as in many other jurisdictions. The effect of that designation is to limit the density of the development by land use designation to 499 units. Any increase in the density or intensity of the development would require a land use plan amendment. Consequently, when calculating the multiplier, the density approved for this PUD (499 units) should be utilized rather than the PUD maximum allowable density of eight units per acre. Petitioners developed a multiplier of their own of 4.1. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Intervenor's marketing scheme for its residential developments is directed at persons moving to Florida from other states. Intervenor plans to use the same marketing scheme for the Pringle parcel, and most residents are not expected to be from the County. The proposed development, along with the Villages development in the northeast section of the County, which is subject to age restrictions which limit its availability to families, is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Between 1992 and 1996, the federal prison facility located near the Pringle property hired new employees, many of whom relocated from outside the area. However, the vast majority of these immigrants located outside of the County because of a lack of available appropriate housing. The federal prison facility is to be expanded in the near future, with the next phase to employ approximately 250 new employees. This expansion has already been funded by the federal government. Although the federal prison and its expansions were contemplated as part of the Plan adoption process, the impact of the federal prison and its expansions were not included in the population projections as calculated in the Plan. The seasonal population of the County was not included in the Plan's population projection. Rule 9J-5.005(2)(e), Florida Administrative Code, requires both resident and seasonal population estimates be used to determine population estimates for plan and plan amendment purposes. Therefore, the seasonal population estimate and the impact of the federal prison should be included in determining need. Given these considerations, Petitioners have not shown to the exclusion of fair debate that the plan amendment was not based on a demonstrated need, or was not adequately supported by data and analysis. Compatibility with adjacent agricultural lands Petitioners have also alleged the County has not demonstrated compatibility with adjacent agricultural and rural residential land uses. The Plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the Plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and Master Development Plan, both incorporated into the plan amendment, shows that the Pringle development will provide approximately 225 acres of open space. Much of this open space, as required by the Plan, will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development, which serves to separate the more urban development from the adjacent agricultural and rural uses. In view of these considerations, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent agricultural land uses. Level of services In their Petition, Petitioners assert that amendment 96A01 violates Plan Objective 7.1.6, Policy 7.1.6.1, Objective 8.1.1, and Policy 8.1.1.1, Rules 9J-5.005(3), 9J-5.011(2)c., and 9J-5.015(3)(b)1., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services, stormwater, and flooding. The stated policies and rules require adoption and adherence to specific levels of service prior to development of land. The amount of facilities required is based on population. Under the Plan, the County must take the necessary steps to insure the availability of these facilities. The development order in this case also requires the developer to provide for adequate public facilities. Petitioners offered no testimony, exhibits, or evidence regarding the following: Plan Objective 7.16, as alleged in paragraph 15.F. of their petition; Objectives 4.4.1, 4.5.1, and 4.5.2, and Policies 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.5.1.2, and 4.5.2.1, as alleged in paragraph 15.G of their petition; Objective 8.1.1, as alleged in paragraph 15H of their petition; and Objective 1.3.5, as alleged in paragraph 15.I of their petition. Petitioners also specifically stated they are not contesting any issues regarding flooding. In view of this lack of presentation of evidence, Petitioners have failed to show to the exclusion of reasonable debate that the plan amendment is inconsistent with any of the above Plan Objectives and Policies.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order determining Plan Amendment 96-2 adopted by Sumter County by Ordinance Number 96-17 on September 24, 1996, to be in compliance. DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jane M. Gordon Environmental and Land Use Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 T. Daniel Farnsworth 12364 County Road 223 Oxford, Florida 34484 Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 Jimmy D. Crawford, Esquire Post Office Box 492460 Leesburg, Florida 34749-2460 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
