The Issue The issue is whether Plan Amendment No. 04-4 adopted by Ordinance No. 647 on October 5, 2004, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Intevernor owns a 31.4-acre tract of land in Martin County several miles southwest of Jupiter, east of Interstate 95 and the Florida Turnpike, and slightly more than one mile west of U.S. Highway 1. On the southern half of the property is an existing cemetery, Riverside Memorial Park, Inc. (the Cemetery), which has been in place since 1901 and is used for interments. The northern half of the land is completely undeveloped and contains native vegetation, including sand pine scrub and pine flatwoods. (If the land use change is approved, besides continuing in-ground burials and constructing mausoleum buildings on the vacant part of the land, Intervenor apparently intends to construct a funeral home. This intended use, and the possibility of others, has triggered the filing of the challenge by Petitioner.) The Cemetery is bordered on the east by a developed residential neighborhood, Tropic Vista; on the north by a platted but largely undeveloped residential area, Hyland Terrace, and the Jonathan Dickinson State Park (State Park); and on the south by Southeast County Road, which runs along the Martin County-Palm Beach County boundary line. Another residential neighborhood lies just south of that road in Palm Beach County. The County's existing Plan was adopted in 1990. Since that time, the Cemetery has been designated on the FLUM as Institutional, Public Conservation, which is defined in Section 4.4.M.1.h.(2) of the Future Land Use Element (FLUE) of the Plan as follows: The Public Conservation category recognizes those publicly owned areas designed for conservation uses. Only development compatible with conservation and passive recreation uses shall be permitted in the Public Conservation category. This may include access, parking, and other facilities which make possible the management of the resource and the public's enjoyment of the resources. Conservation areas include, but are not limited to, the DuPuis Preserve in south Martin County and the Savannas in north Martin County. Enviromentally sensitive lands acquired by the County shall be reclassified to the Institutional-Conservation land use designation during the next plan amendment cycle. The State Park and most of the platted residential property to the north of the Cemetery (e.g., Hyland Terrace) are currently designated Public Conservation on the FLUM. The remainder of the property to the north and the neighborhoods to the east and west of the property are designated Low Density Residential on the FLUM, which allows a maximum of five dwelling units per acre. The residential property to the south in Palm Beach County is also designated Low Density Residential under that County's future land use map. By application filed with the County in September 2003, Intervenor, who purchased the Cemetery in 1997, requested that the FLUM designation on the property be changed to General Institutional. That land use category is defined in Section 4.4.M.1.h.(3) of the FLUE as follows: The General Institutional category accommodates public and not-for-public facilities such as, but not limited to, schools, government buildings, civic centers, prisons, major stormwater facilities, fire and emergency operation center facilities, public cemeteries, hospitals, publicly owned public water and sewer systems, dredge spoil management sites, and airports. Investor owned regional public water and sewer systems and private cemeteries may be allowed in General Institutional. Lands acquired by the County for General Institutional uses shall be reclassified to the Institutional- General land use designation during the next plan amendment cycle. Lands or property rights acquired by the Florida Inland Navigation District as future dredge spoil management sites shall be reclassified to the Institutional-General land use designation during the next plan amendment cycle. (Emphasis added) Concurrently with this change, Intervenor also requested a zoning change on the parcel from Public Service to Public Service-2 (PS-2). However, the County denied that requested change in zoning. On February 19, 2004, the Local Planning Agency (LPA) voted 5-0 to recommend approval of Intervenor's request. On April 4, 2004, the County voted to accept the LPA's recommendation. On May 7, 2004, a transmittal package consisting of 13 amendments, including Plan Amendment No. 04- 4, was transmitted to the Department for its review. In an Objections, Recommendation, and Comments Report (ORC) issued on July 9, 2004, the Department had no objections to, or recommendations for, Plan Amendment No. 04-4 and made only the following brief comments regarding that amendment: The change would correct an inappropriate designation given the site previously and would allow the continued use of the site for cemetery use. Adjacent properties will be protected through buffering, landscaping, and screening requirements. The proposed change is being made to correct an inappropriate land use designation on a well-established existing land use. After receiving the ORC, and making changes to certain amendments (but not Plan Amendment No. 04-4) to satisfy the Department's concerns, in a report dated August 10, 2004, the County staff recommended to the County that the modified package of amendments be approved. As to Plan Amendment No. 04-4, the County staff noted that "[t]he requested land use amendment meets the criteria to correct an inappropriate land use designation." The County scheduled the package of amendments for consideration at a meeting in September 2004. Due to Hurricanes Frances and Jeanne, however, the matter was rescheduled to the following month. On October 5, 2004, by a 4-1 vote, the County enacted Ordinance No. 647, which adopted, among others, Plan Amendment No. 04-4. The revised package was then forwarded to the Department for its compliance review. The data and analyses presented by the County in support of the Plan Amendment included aerial photographs and detailed site maps; a review of past changes in future land use designations in the surrounding area; information about, and analysis of, environmental considerations including soils, wetlands, overall hydrology, plant and animal species, and impact on the adjoining State Park; a capital facilities impact analysis; a transportation analysis; a concurrency analysis, including impacts on public utilities, parks and recreation facilities, and fire and public safety facilities; an evaluation of the potential for contribution to urban sprawl; and an extensive review of compatibility with numerous goals, objectives, and policies of the Plan. Although Petitioner asserted at hearing that "the documentation of the applicant . . . [does not] support the purpose to correct an inappropriate land use designation," none of this data and analyses was factually contradicted by Petitioner. On November 29, 2004, the Department published its Notice in the Stuart News, a local newspaper of general circulation. On December 16, 2004, Petitioner, who resides in St. Lucie County and says she owns four plots within the Cemetery, filed her 19-page Petition raising a number of procedural and substantive allegations.2 At hearing, however, her testimony focused on the issues of whether Intervenor was required to secure the consent of all of the individual burial plot owners before it could file the application for a land use change; whether the plan amendment actually corrects an inappropriate land use designation, rather than being "a complex change from an actual passive land use of the historical cemetery"; whether the amendment comports with the requirements in Chapter 497, Florida Statutes, which governs funeral and cemetery services; and whether the proposed land use is compatible with the "passive" nature of the cemetery. Prior to the hearing, Petitioner did not assert that Intervenor was required to obtain the consent of all plot owners before filing its application with the County. Therefore, the issue has not been timely raised. Even it was, the issue is irrelevant to an in compliance determination, as defined in Section 163.3184(1)(b), Florida Statutes. That is to say, while ownership may bear on the issue of standing, it is not a consideration in determining whether a land use change is in compliance. Thus, the County (or even Intervenor for that matter) can initiate a change in land use, regardless of the ownership of the affected property. Likewise, issues regarding compliance with the requirements of Chapter 487, Florida Statutes, are not relevant here. Those matters should be raised with the agency responsible for administering funeral home and cemetery regulations. In the same vein, Petitioner's concern that the undeveloped portion of Intervenor's land may be used for a funeral home or another use allowed in the General Institutional category is not relevant to the issue of whether the amendment is in compliance. Compatibility concerns such as these can be addressed through relevant zoning and building code requirements and land development regulations. Finally, Petitioner has contended that the existing land use category, Institutional, Public Conservation, is appropriate for the Cemetery and that it is unnecessary to change that designation. To place this issue in proper perspective, it is necessary to go back to 1982, when the first County FLUM was adopted. At that time, there was only one institutional designation, which was assigned to all institutional property, both publicly and privately owned, including the Cemetery. When the 1990 Plan was adopted, however, the Department required that the County establish three categories of institutional property: Institutional General, Institutional Recreational, and Institutional, Public Conservation. Probably because the State Park, a County fire station, a missile tracking station, a mental health facility, and the Cemetery were all in the same area, through "oversight" the Public Conservation designation was inadvertently assigned to all of those parcels at that time, even though that designation was inappropriate for the privately-owned Cemetery. The existing designation, Institutional, Public Conservation, recognizes those "publicly owned areas designed for conservation uses." (Emphasis added) See § 4.4.M.1.h.(2). The category is specifically limited to "development compatible with conservation and passive recreation uses," such as "[e]nvironmentally sensitive lands." Id. One of its purposes is to protect natural areas, natural flora, and fauna. The new land use designation, General Institution, accommodates public and not-for-profit facilities, such as schools, government buildings, and civic centers. It also specifically includes private cemeteries. See § 4.4.M.1.h.(3). The Cemetery is not owned by any government or other public entity, but is entirely privately-owned, either by Intervenor, by a subsidiary corporate entity, or by the heirs to the deceased owners of individual cemetery plots. (Apparently, warranty deeds were given to purchasers of burial plots prior to 1985, and since that time, certificates of perpetual interment have been issued.) As such, the Cemetery appropriately falls within the General Institutional land use category. It is beyond fair debate that the land use Public Conservation land use is an inappropriate one for the Cemetery because the land use designation, by definition in the Plan, is intended only for "publicly owned areas designed for conservation uses." The Cemetery is neither publicly owned nor a conservation use of the land. It is beyond fair debate that the land use General Institutional is the only appropriate one for the Cemetery because that land use designation, by definition in the Plan, expressly provides that "private cemeteries may be allowed" in that category.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Plan Amendment No. 04-4 adopted by Ordinance No. 647 on October 5, 2004, is in compliance. DONE AND ENTERED this 23rd day of February, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2005.
The Issue The issue in this case is whether the amendments to Miami- Dade County’s Comprehensive Development Master Plan (CDMP), adopted through Ordinance Nos. 08-44 and 08-45, are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review amendments to local comprehensive plans and to determine whether the amendments are “in compliance,” pursuant to Section 163.3184, Florida Statutes. The County is a political subdivision of the State and has adopted a local comprehensive plan that the County amends from time to time. 1000 Friends is a Florida not-for-profit corporation that maintains its headquarters in Tallahassee, Florida. Its corporate purpose is to ensure the fair and effective implementation of the Growth Management Act, Chapter 163, Part II, Florida Statutes, through education, lobbying, research and litigation. 1000 Friends has approximately 3,500 members, 174 of whom live in the County. NPCA is a foreign, not-for-profit corporation that is registered to do business in Florida. Its headquarters are in Washington, D.C. It has a branch office in Hollywood, Broward County, Florida. NPCA’s purpose is to protect and preserve national parks, including Everglades National Park. NPCA has approximately 340,000 members, 1,000 of whom live in the County. Barry White and Karen Esty are residents of the County. Lowe’s is a for-profit corporation that owns and operates a business in the County. David Brown, along with his father and brother, is a co-applicant for the Brown amendment. For the purpose of this Recommended Order, the Department and the Intervenors aligned with the Department will be referred to, collectively, as Petitioners. Standing Lowe’s filed the application with the County that resulted in Ordinance No. 08-44 (Lowe’s Amendment). Lowe’s submitted comments to the County concerning the Lowe’s Amendment during the period of time from the County’s transmittal of the amendment to the County’s adoption of the amendment. Brown filed the application with the County that resulted in Ordinance No. 08-45 (Brown Amendment). Brown resides in the County. Brown is a manager/member of BDG Kendall 172, LLC, which has a contract to purchase the larger of the two parcels on the application site. Brown is also a manager/member of BDG Kendall 162, LLC, which owns and operates a business in Miami-Dade County. Brown submitted comments to the County at the transmittal and adoption hearings. 1000 Friends submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. 1000 Friends presented its comments to the County on behalf of its members who reside in the County. 1000 Friends does not own property or maintain an office in the County. 1000 Friends does not pay local business taxes in the County and did not show that it is licensed to conduct a business in the County. 1000 Friends has engaged in fundraising, lobbying, and litigation in the County. Its activities include efforts to promote growth management, affordable housing, and Everglades restoration. 1000 Friends did not show that its activities in the County subject it to the provisions of the CDMP. NPCA submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. NPCA presented its comments to the County on behalf of NPCA members who reside in the County. NPCA does not own property or maintain an office in the County. No evidence was presented to show that NPCA pays business taxes in the County or that it is licensed to conduct business in the County. NPCA did not show that its activities in the County subject it to the provisions of the CDMP. Barry White and Karen Esty are residents of the County. They submitted comments to the County regarding the amendments during the period of time from the transmittal of the amendments to their adoption. The Amendment Adoption Process The applications which resulted in the Lowe’s and Brown Amendments were submitted to the County during the April 2007 plan amendment cycle. The County’s review process for comprehensive plan amendments includes a public hearing before the community council which has jurisdiction over the area of the County where the affected lands are located. Following the public hearings on the proposed Lowe’s and Brown Amendments, the community councils recommended that the Board of County Commissioners approve the amendments. The County’s Planning Advisory Board also reviews proposed amendments before the transmittal and adoption hearings. Following public hearings on the proposed Lowe’s and Brown Amendments, the Planning Advisory Board recommended that the Board of County Commissioners approve the amendments for transmittal and for adoption. The County planning staff recommended that the proposed amendments be denied and not transmitted to the Department. The principal objection of the planning staff was that the expansion of the Urban Development Boundary (UDB), an aspect of both proposed amendments, was unjustified. In November 2007, the Board of County Commissioners voted to transmit the amendments to the Department. The Department reviewed the proposed amendments and issued its Objections, Recommendations, and Comments (ORC) Report on February 26, 2008. In the ORC Report, the Department stated that expanding the UDB would be internally inconsistent with the CDMP because the need for the expansion had not been demonstrated. In addition the Department determined that the Lowe’s Amendment was inconsistent with CDMP policies regarding the protection of wetlands, and the Brown Amendment was inconsistent with CDMP policies regarding the protection of agricultural lands. When the amendments came before the Board of County Commissioners after the ORC Report in March 2008, the County planning staff recommended that the amendments be denied, repeating its belief that the expansion of the UDB would be inconsistent with the CDMP. Under the County’s Code of Ordinances, an expansion of the UDB requires approval by a two-thirds vote of the Board of County Commissioners. The County adopted the amendments through Ordinances No. 08-44 and 08-45 on April 24, 2008. On April 30, 2008, the Mayor Carlos Alvarez vetoed the ordinances, citing inconsistencies with the UDB policies of the CDMP. His veto was overridden by a two-thirds vote of the Board of County Commissioners on May 6, 2008. On July 18, 2008, the Department issued its Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance. The Lowe’s Amendment The Lowe’s Amendment site consists of two parcels located in close proximity to the intersection of Southwest 8th Street, also known as Tamiami Trail, and Northwest 137th Avenue. The easternmost parcel, Parcel A, is 21.6 acres. The adjacent parcel to the west, Parcel B, is 30.1 acres. Neither parcel is currently being used. About 50 percent of both Parcels A and B are covered by wetlands. The wetlands are partially drained and show encroachment by exotic vegetation, including Melaleuca and Australian pine. The Lowe’s site is located within the Bird Trail Canal Basin, which the CDMP characterizes as containing “heavily impacted, partially drained wetlands.” Both Parcels A and B are currently designated Open Land under the CDMP, with a more specific designation as Open Land Subarea 3 (Tamiami-Bird Canal Basins), and can be used for residences at densities of up to one unit per five acres, compatible institutional uses, public facilities, utility and communications facilities, certain agricultural uses, recreational uses, limestone quarrying, and ancillary uses. East of the Lowe’s site is another parcel owned by Lowe’s that is designated Business and Office and is within the UDB. North and west of the Lowe’s site is Open Land. The Lowe’s site is bordered on the south by Tamiami Trail, a six- lane road. Across Tamiami Trail is land designated Business and Office. The Lowe’s amendment would reclassify Parcel A as Business and Office and Parcel B as Institution, Utilities, and Communications. The Lowe’s Amendment would also extend the UDB westward to encompass Parcels A and B. The Business and Office designation allows for a wide range of sales and service activities, as well as compatible residential uses. However, the Lowe’s amendment includes a restrictive covenant that prohibits residential development. The Institution, Utilities, and Communications land use designation allows for “the full range of institution, communications and utilities,” as well as offices and some small businesses. Parcel A is subject to another restrictive covenant that provides that Lowe’s shall not seek building permits for the construction of any buildings on Parcel A without having first submitted for a building permit for the construction of a home improvement store. The use of Parcel B is restricted to a school, which can be a charter school. If a charter school is not developed on Parcel B, the parcel will be offered to the Miami-Dade County School Board. If the School Board does not purchase Parcel B within 120 days, then neither Lowe’s nor its successors of assigns have any further obligations to develop a school on Parcel B. The Brown Amendment The Brown Amendment involves four changes to the CDMP: a future land use re-designation from “Agriculture” to “Business and Office”; an expansion of the UDB to encompass the Brown site; a prohibition of residential uses on the site; and a requirement that the owner build an extension of SW 172nd Avenue through the site. The Agriculture designation allows agricultural uses and single family residences at a density of one unit per five acres. The proposed Business and Office land use designation allows a wide range of commercial uses, including retail, professional services, and office. Residential uses are also allowed, but the Declaration of Restrictions adopted by the County with the Brown Amendment prohibits residential development. The Brown Amendment site is 42 acres. Some of the site is leased to a tenant farmer who grows row crops. The balance is vacant and not in use. The Brown site has a triangular shape. Along the sloping northern/eastern boundary is Kendall Drive. Kendall Drive is a major arterial roadway, a planned urban corridor, and part of the state highway system. On the site's western boundary is other agricultural land. There is commercial development to the east. Along the southern boundary is the 1200-unit Vizcaya Traditional Neighborhood Development, which is within the UDB. The entirety of the Brown site has been altered by farming activities. In the southwest portion of the site is a four-acre, degraded wetland that is part of a larger 28-acre wetland located offsite. The wetland is not connected to any state waters and the Army Corps of Engineers has not asserted jurisdiction over it. The wetland is not on the map of “Future Wetlands and CERP Water Management Areas” in the Land Use Element of the CDMP. The dominant plants in the wetland are exotic species. There is no evidence that any portion of the site is used by any threatened or endangered species. The Urban Development Boundary and Urban Expansion Area The principal dispute in this case involves the application of Policies LU-8F and LU-8G of the CDMP regarding the expansion of the UDB. Policy LU-8F directs that adequate supplies of residential and nonresidential lands be maintained in the UDB. If the supply of lands becomes inadequate, Policy LU-8G addresses where the expansion of the UDB should occur. The UDB is described in the Land Use Element: The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2015 from areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2015 provided that level- of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by increasing development densities or intensities inside the UDB, or by expanding the UDB, when the need for such change is determined to be necessary through the Plan review and amendment process. The UDB promotes several planning purposes. It provides for the orderly and efficient construction of infrastructure, encourages urban infill and redevelopment, discourages urban sprawl, and helps to conserve agricultural and environmentally-sensitive lands. The County only accepts applications for amendments seeking to expand the UDB once every two years, unless they are directly related to a development of regional impact. In contrast, Chapter 163, Florida Statutes, allows two amendment cycles in a calendar year, Amendments that would expand the UDB must be approved by at least two-thirds of the total membership of the Board of County Commissioners. Other types of amendments only require a majority vote of the quorum. Outside the UDB are County lands within the relatively small Urban Expansion Area (UEA), which is described in the CDMP as “the area where current projections indicate that further urban development beyond the 2015 UDB is likely to be warranted some time between the year 2015 and 2025.” The UEA consists of lands that the CDMP directs “shall be avoided” when the County is considering adding land to the UDB. They are (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. The “future” wetlands on this list are existing wetland areas delineated by the County on Figure 14 of the Land Use Element. A far larger area of the County, mostly west of the UDB and UEA, consists of lands that the CDMP directs “shall not be considered” for inclusion in the UDB. These are water conservation areas, lands associated with Everglades National Park, the Redland agricultural area, and wellfield protection areas. Policy LU-8F Policy LU-8F of the Land Use Element provides: The Urban Development Boundary (UDB) should contain developable land having capacity to sustain projected countywide residential demand for a period of 10 years after adoption of the most recent Evaluation and Appraisal Report (EAR) plus a 5-year surplus (a total 15-year Countywide supply beyond the date of EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy LU-7F. The adequacy of non- residential land supplies shall be determined on the basis of land supplies in subareas of the County appropriate to the type of use, as well as the Countywide supply within the UDB. The adequacy of land supplies for neighborhood- and community- oriented business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, Minor Statistical Areas (MSAs) and combinations thereof. Tiers, Half-Tiers and combinations thereof shall be considered along with the Countywide supply when evaluating the adequacy of land supplies for regional commercial and industrial activities. There is no further guidance in the CDMP for determining the “adequacy of land supplies” with respect to nonresidential land uses. Neither Chapter 163, Florida Statutes, nor Florida Administrative Code Chapter 9J-5 requires that local governments use a particular methodology to determine the adequacy of nonresidential land supplies. The County’s usual methodology for determining need is described in the Planning Considerations Report that the County planning staff prepared for the 2007 amendment cycle. A report like this one is prepared by the staff for each amendment cycle to evaluate the adequacy of the CDMP to accommodate growth and to evaluate pending amendment applications. The County compares a proposed use to its immediate surroundings and the broader area of the County in which the proposed use is located. The basic geographic unit used in the County’s need analysis is the Minor Statistical Area (MSA). Larger planning areas, called Tiers, are groupings of MSAs. The County is divided into 32 MSAs and four Tiers. The Lowe’s Amendment site is in MSA 3.2, but it is on the border with MSA 6.1, so the two MSAs were consolidated for the County’s need analysis regarding the Lowe’s Amendment, even though MSA 3.2 is in the North Central Tier and MSA 6.1 is in the South Central Tier. The Brown Amendment is in MSA 6.2, but it is close to MSA 6.1, so the County combined the two MSAs for its need analysis for the Brown Amendment. Both MSAs are in the South Central Tier. The Planning Considerations Report contains a 2007 inventory of commercial land. The only vacant land used in the analysis of available commercial land supply was land zoned for business, professional office, office park, or designated Business and Office on the Land Use Map. Although it is stated in the Planning Considerations Report that lands zoned or designated for industrial uses are often used for commercial purposes, this situation was not factored into the calculation of the available supply of commercial lands. The County also excluded any supply that could be gained from the redevelopment of existing sites. Petitioners contend, therefore, that the County’s need for commercial land is less than the planning staff calculated in the Planning Considerations Report. On the other hand, Respondents contend that the County’s need for commercial land is greater than the planning staff calculated in the Planning Considerations Report because the County planning staff did not apply a “market factor” for commercial lands as it does for residential lands. A market factor is considered by some professional planners to be appropriate for commercial land uses to account for physical constraints and other factors that limit the utilization of some vacant parcels, and to prevent situations where the diminished supply of useable parcels causes their prices to rise steeply. The CDMP recognizes the problem in stating that: impediments can arise to the maximum utilization of all lands within the boundaries [of the UDB]. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density and character of a particular area. The County used a market factor of 1.5 (50 percent surplus) to determine the need for residential land. The County did not use a market factor in its analysis of the need for commercial land. The Department’s expert planning witness, Mike McDaniel, testified that the Department generally supports use of a 1.25 allocation (25 percent surplus). The County’s most recent UDB expansions for nonresidential uses (other than Lowe’s and Brown) were the Beacon Lakes and Shoppyland amendments in 2002. The Beacon Lakes and Shoppyland UDB expansions were approved despite the fact that the County did not project a need for more industrial land within the planning horizon. The need determinations for these amendments were not based on the use of a market factor, but on a percieved2`` need for the particular land uses proposed – warehouses and related industrial uses on large parcels to serve the Miami International Airport and the Port of Miami. The evidence indicates that the County’s exclusion from its analysis of industrial lands that can be used for commercial purposes, and additional commercial opportunities that could be derived from the redevelopment of existing sites, is offset by the County’s exclusion of a market factor. If the supply of commercial land had been increased 25 percent to account for industrial lands and redevelopment, it would have been offset by a 1.25 market factor on the demand side. The calculations made by the County in its Planning Considerations Report would not have been materially different. The Planning Considerations Report analyzes commercial demand (in acres) through the years 2015 and 2025, and calculates a “depletion year” by MSA, Tier, and countywide. A depletion year is the year in which the supply of vacant land is projected to be exhausted. If the depletion year occurs before 2015 (the planning horizon for the UDB), that is an indication that additional lands for commercial uses might be needed. The County planning staff projected a countywide depletion year of 2023, which indicates there are sufficient commercial lands in the County through the planning horizon of 2015. The County then projected the need for commercial land by MSA and Tier. MSA 3.2, where the Lowe’s site is located, has a depletion year of 2025, but when averaged with MSA 6.1’s depletion years of 2011, results in an average depletion year of 2018. The North Central Tier, in which the Lowe’s Amendment site is located, has a depletion year of 2023. The County’s depletion year analysis at all three levels, MSA, Tier, and countywide, indicates no need for more commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a depletion year of 2017, but when combined with MSA 6.1’s depletion of 2011, results in an average depletion year for the two MSAs is 2014. The South Central Tier, in which the Brown Amendment site is located, has a depletion year of 2014. Therefore, the County’s depletion year analysis, at the MSA and Tier levels, indicates a need for more commercial lands in the area of the Brown site. The County also analyzed the ratio of commercial acres per 1,000 persons by MSA, Tier, and county-wide. The countywide ratio is not a goal that the County is seeking to achieve for all Tiers and MSAs. However, if a Tier or MSA shows a ratio substantially lower than the countywide ratio, that MSA or Tier might need more commercial lands. The countywide ratio of commercial lands per 1,000 persons is projected to be 6.1 acres per 1,000 persons in 2015. MSA 3.2, in which the Lowe’s site is located, has a ratio of 11.3 acres per 1,000 persons. MSA 6.1 has a ratio of 2.6 acres. The average for the two MSAs is 6.95 acres. The ratio for all of the North Central Tier is 6.3 acres per 1,000 persons. Therefore, a comparison of the countywide ratio with the MSAs and Tier where the Lowe’s site is located indicates there is no need for additional commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a ratio of 4.1 acres per 1,000 persons. When combined with MSA 6.1’s ratio of 2.6 acres, the average for the two MSAs is 3.35 acres. The ratio for all of the South Central Tier is 4.5 acres per 1,000 persons. Therefore, a comparison with the countywide ratio of 6.1 acres indicates a need for additional commercial lands in the area of the Brown site. The County’s need analysis treated the Kendall Town Center as vacant (i.e., available) commercial land, but the Kendall Town Center is approved and under construction. If the Kendall Town Center had been excluded, the County’s projected future need for commercial land in the area of the Brown site would have been greater. The Planning Considerations Report does not discuss parcel size in its commercial need analysis. Lowe’s contends that the County should have considered whether there is a need for larger “community commercial” uses in the area of the Lowe’s site. Policy LU-8F refers only to the need to consider (by “Tiers, Half-Tiers and combinations thereof”) the adequacy of land supplies for “regional commercial activities.” Lowe’s planning expert testified that there are few undeveloped commercial parcels in MSAs 3.2 and 6.1 that are ten acres or more, or could be aggregated with contiguous vacant parcels to create a parcel bigger than ten acres. Lowe’s submitted two market analyses for home improvement stores, which conclude that there is a need for another home improvement store in the area of the Lowe’s site. The market analyses offered by Lowe’s differ from the County’s methodology, which focuses, not on the market for a particular use, but on the availability of commercial lands in appropriate proportion to the population. Even when it is reasonable for the County to consider the need for a unique use, the County’s focus is on serving a general public need, rather than on whether a particular commercial use could be profitable in a particular location. Some of the assumptions used in the market analyses offered by Lowe’s were unreasonable and biased the results toward a finding of need for a home improvement store in the study area. The more persuasive evidence shows that there is no need for more commercial land, and no need for a home improvement store, in the area of the Lowe’s site. Lowe’s Parcel B is proposed for use as a school. The elementary, middle and high schools serving the area are over- capacity. Lowe’s expects the site to be used as a charter high school. Using an inventory of lands that was prepared by the County staff, Lowe’s planning expert investigated each parcel of land located within MSAs 3.2 and 6.1 that was over seven acres2 and determined that no parcel within either MSA was suitable for development as a high school. The record is unclear about how the Lowe’s Amendment fits into the plans of the County School Board. The proposition that there are no other potential school sites in the area was not firmly established by the testimony presented by Lowe’s. The need shown for the school site on Parcel B does not overcome the absence of demonstrated need for the Business and Office land use on Parcel A. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8F. The County’s determination that the Brown Amendment is consistent with Policy LU-8F is fairly debatable. Policy LU-8G Policy LU-8GA(i) identifies lands outside the UDB that “shall not be considered for inclusion in the UDB. Policy LU- 8G(ii) identifies other lands that “shall be avoided,” including (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. A peculiarity of the UEA is that it is composed entirely of lands that “shall be avoided” when the County considers adding lands to the UDB. The Department contends that “shall be avoided” means, in this context, that the County must make “a compelling showing that every other option has been exhausted” before the UDB can be expanded. However, the CDMP does not express that specific intent. The CDMP does not provide any direct guidance about how compelling the demonstration must be to expand the UDB. Policies LU-8F and LU-8G appear to call for a balancing approach, where the extent of the need for a particular expansion must be balanced against the associated impacts to UEA lands and related CDMP policies. The greater the needs for an expansion of the UDB, the greater are the impacts that can be tolerated. The smaller the need, the smaller are the tolerable impacts. Because the need for the Lowe’s Amendment was not shown, the application of the locational criteria in Policy LU- 8G is moot. However, the evidence presented by Lowe’s is addressed here. Within the meaning of Policy LU-8G(ii)(a), the wetlands that “shall be avoided” are those wetlands that are depicted on the Future Wetlands Map part of the Land Use Element of the CDMP. About 50 percent of the Lowes site is covered by wetlands that are on the Future Wetlands Map. Petitioners speculated that the construction of a Lowe’s home improvement store and school on the Lowe’s site could not be accomplished without harm to the wetlands on the site, but they presented no competent evidence to support that proposition. The wetland protections afforded under the environmental permitting statutes would not be affected by the Lowe’s Amendment. Nevertheless, this is a planning case, not a wetland permitting case. It is a well-recognized planning principle that lands which have a high proportion of wetlands are generally not suitable for land use designations that allow for intense uses. The Lowe’s Amendment runs counter to this principle. Policy LU-8F(iii) identifies areas that “shall be given priority” for inclusion in the UDB: Land within Planning Analysis Tiers having the earliest projected supply depletion year; Lands contiguous to the UDB; Locations within one mile of a planned urban center or extraordinary transit service; and Lands having projected surplus service capacity where necessary services can be readily extended. The Lowe’s site satisfies all but the first criterion. The Lowe’s site is in the Tier with the latest projected supply depletion year. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8G. Because a reasonable showing of need for the Brown Amendment was shown, it is appropriate to apply the locational criteria of Policy LU-8G. The Brown Amendment would expand the UDB into an area of the UEA that is designated Agriculture. The single goal of the CDMP’s Land Use Element refers to the preservation of the County’s “unique agricultural lands.” The CDMP refers elsewhere to the importance of protecting “viable agriculture.” Brown argued that these provisions indicate that the County did not intend to treat all agricultural lands similarly, and that agricultural activities like those on the Brown site, that are neither unique nor viable, were not intended to be preserved. Petitioners disagreed. The County made the Redland agricultural area one of the areas that “shall not be considered” for inclusion in the UDB. Therefore, the County knew how to preserve “unique” agricultural lands and prevent them from being re-designated and placed in the UDB. The only evidence in the record about the economic “viability” of the current agricultural activities on the Brown site shows they are marginally profitable, at best. The Brown site is relatively small, has a triangular shape, and is wedged between a major residential development and an arterial roadway, which detracts from its suitability for agricultural operations. These factors also diminish the precedent that the re-designation of the Brown site would have for future applications to expand the UDB. The Brown site satisfies all of the criteria in Policy LU-8G(iii) to be given priority for inclusion in the UDB. The County’s determination that the Brown Amendment is consistent with Policy LU-8G is fairly debatable. Policy EDU-2A Policy EDU-2A of the CDMP states that the County shall not purchase school sites outside the UDB. It is not clear why this part of the policy was cited by Petitioners, since the Lowe’s Amendment would place Parcel B inside the UDB. Policy EDU-2A also states that new elementary schools “should” be located at 1/4 mile inside the UDB, new middle schools “should” be located at least 1/2 mile inside the UDB, and new high schools “should” be located at least one mile inside the UDB. The policy states further that, “in substantially developed areas,” where conforming sites are not available, schools should be placed as far as practical from the UDB. Petitioners contend that the Lowe’s Amendment is inconsistent with Policy EDU-2A because Parcel B, the school site in the Lowe’s Amendment, would be contiguous to the UDB if the Lowe’s Amendment were approved. However, when a policy identifies circumstances that allow for an exception to a stated preference, it is necessary for challengers to show that the exceptional circumstances do not exist. It was Petitioners’ burden to demonstrate that there were conforming school sites farther from the UDB in the area of the Lowe’s site. Petitioners did meet their burden. The County’s determination that the Lowe’s Amendment is consistent with Policy EDU-2A is fairly debatable. Urban Sprawl 1000 Friends and NPCA allege that the Brown and Lowe’s Amendments would encourage the proliferation of urban sprawl. The Department did not raise urban sprawl as an “in compliance” issue. Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl. The presence and potential effects of multiple indicators is to be considered to determine “whether they collectively reflect a failure to discourage urban sprawl.” Fla. Admin. Code R. 9J- 5.006(5)(d). Indicator 1 is designating 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.” It was found, above, that the County had a reasonable basis to determine there was a need for the Brown Amendment, but not for the Lowe’s Amendment. Therefore, this indicator is triggered only by the Lowe’s Amendment. Indicator 2 is designating significant amounts of urban development that leaps over undeveloped lands. The facts do not show that undeveloped lands were leaped over for either of the amendments. Indicator 3 is designating urban development “in radial, strip, isolated, or ribbon patterns.” The Lowe’s and Brown Amendments do not involve radial or isolated development patterns. What would constitute a “ribbon” pattern was not explained. Not every extension of existing commercial uses constitutes strip sprawl Other factors need to be considered. For example, both the Lowe’s and Brown sites are at major intersections where more intense land uses are commonly located. Under the circumstances shown in this record, this indicator is not triggered for either amendment. Indicator 4 is premature development of rural land that fails to adequately protect and conserve natural resources. This indicator is frequently cited by challengers when an amendment site contains wetlands or other natural resources, without regard to whether the potential impact to these resources has anything to do with sprawl. In the area of the Lowe’s site, the UDB generally divides urbanized areas from substantial wetlands areas that continue west to the Everglades. The Lowe’s Amendment intrudes into an area dominated by wetlands and, therefore, its potential to affect wetlands is an indication of sprawl. In the area of the Brown Amendment, the UDB generally separates urbanized areas from agricultural lands that already have been substantially altered from their natural state. The Brown Amendment invades an agricultural area, not an area of natural resources. Therefore, the potential impacts of the Brown Amendment on the small area of degraded wetlands on the Brown site do not indicate sprawl. Indicator 5 is failing to adequately protect adjacent agricultural areas and activities. Because this indicator focuses on “adjacent” agricultural areas, it is not obvious that it includes consideration of effects on the amendment site itself. If this indicator applies to the cessation of agricultural activities on the Brown site, then the Brown Amendment triggers this primary indicator. If the indicator applies only to agricultural activities adjacent to the Brown site, the evidence was insufficient to show that this indicator is triggered. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. Urban sprawl is generally indicated when new public facilities must be created to serve the proposed use. Petitioners did not show that new public facilities must be created to serve the Lowe’s or Brown sites. The proposed amendments would maximize the use of existing water and sewer facilities. Petitioners did not show that the amendments would cause disproportionate increases in the costs of facilities and services. Indicator 9 is failing to provide a clear separation between rural and urban uses. The Lowe’s Amendment would create an irregular and less clear separation between urban and rural uses in the area and, therefore, the Lowe’s Amendment triggers this indicator. The Brown Amendment does not trigger this indicator because of it is situated between the large Vizcaya development and Kendall Drive, a major arterial roadway. The Brown Amendment would create a more regular separation between urban and rural uses in the area. Indicator 10 is discouraging infill or redevelopment. The CDMP delineates an Urban Infill Area (UIA) that is generally located east of the Palmetto Expressway and NW/SW 77th Avenue. Petitioners did not demonstrate that the Brown and Lowe’s Amendments discourage infill within the UIA. Petitioners did not show how any particular infill opportunities elsewhere in the UDB are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive for infill. This indicator, therefore, is triggered to a small degree by both amendments. The CDMP promotes redevelopment of buildings that are substandard or underdeveloped. Petitioners did not show how any particular redevelopment opportunities are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive to redevelop existing properties. This indicator, therefore, is triggered to a small degree by both amendments. Indicator 11 is failing to encourage or attract a functional mix of uses. Petitioners failed to demonstrate that this primary indicator is triggered. Indicator 12 is poor accessibility among linked or related uses. No evidence was presented to show that this indicator would be triggered. Indicator 13 is the loss of “significant” amounts of open space. These amendments do not result in the loss of significant amounts of open space, whether measured by acres, by the percentage of County open lands converted to other uses, or by any specific circumstances in the area of the amendment sites. Evaluating the Lowe’s Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment fails to discourage the proliferation of urban sprawl. Evaluating the Brown Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Brown Amendment does not fail to discourage the proliferation of urban sprawl. Land Use Analysis The Department claims that the Lowe’s and Brown Amendments are inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c), which requires that the land use element of a comprehensive plan be based on an analysis of the amount of land needed to accommodate projected population. The Department believes the analyses of need presented by Lowe’s and Brown’s consultants were not professionally acceptable. Petitioners proved by a preponderance of the evidence that there was no need for the Lowe’s Amendment. Therefore, the Lowe’s Amendment is inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c). A preponderance of competent, substantial, and professionally acceptable evidence of need, in conformance with and including the methodology used by the County planning staff, demonstrated that the Brown Amendment is consistent with Florida Administrative Code Rule 9J-5.006(2)(c).3 Florida Administrative Code Chapter 9J-5 - Natural Resources Petitioners contend the Lowe’s Amendment is inconsistent with the provisions of Florida Administrative Code Chapter 9J-5, which require that the land use element of every comprehensive plan contain a goal to protect natural resources, and that every conservation element contain goals, objectives, and policies for the protection of vegetative communities, wildlife habitat, endangered and threatened species, and wetlands. Petitioners failed to prove by a preponderance of the evidence that the CDMP does not contain these required goals, objectives, and policies. Therefore, Petitioners failed to prove that the Lowe’s amendment is inconsistent with these provisions of Florida Administrative Code Chapter 9J-5.4 The State Comprehensive Plan Petitioners contend that the Lowe’s and Brown amendments are inconsistent with several provisions of the State Comprehensive Plan. Goal (9)(a) of the State Comprehensive Plan and its associated policies address the protection of natural systems. Petitioners contend that only the Lowe’s Amendment is inconsistent with this goal and its policies. For the reasons stated previously, Petitioners showed by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its policies. Goal (15)(a) and its associated policies address land use, especially development in areas where public services and facilities are available. Policy (15)(b)2. is to encourage a separation of urban and rural uses. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and policy. For the reasons stated above, Petitioners failed to show by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies Goal (16)(a) and its associated policies address urban and downtown revitalization. Although the expansion of the UDB diminishes the incentive to infill or redevelop, Petitioners did not show this effect, when considered in the context of the CDMP as a whole and the State Comprehensive Plan as a whole, impairs the achievement of this goal and its associated policies to an extent that the proposed amendments are inconsistent with this goal of the State Comprehensive Plan and its associated policies. Goal (17)(a) and its associated policies address the planning and financing of and public facilities. For the reasons stated previously, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the proposed amendments is inconsistent with this goal and its associated policies. Goal (22)(a) addresses agriculture. Policy(b)1. is to ensure that state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. This policy recognizes that agricultural landowners have the same right to seek to change the use of their lands, and that engaging in agricultural activities is not a permanent servitude to the general public. The policies cited by Petitioners (regarding the encouragement of agricultural diversification, investment in education and research, funding of extension services, and maintaining property tax benefits) are not affected by the Brown Amendment. For the reasons stated above, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies. Goal (25)(a) and its associated policies address plan implementation, intergovernmental coordination and citizen involvement, and ensuring that local plans reflect state goals and policies. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, and was found to contribute to the proliferation of urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Petitioners proved by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Lowe’s Amendment is inconsistent with the State Comprehensive Plan. Petitioners failed to prove by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Brown Amendment is inconsistent with the State Comprehensive Plan.. Strategic Regional Policy Plan Petitioners claim that the Lowe’s Amendment is inconsistent with Goals 11, 12, and 20 of the Strategic Regional Policy Plan of the South Florida Regional Planning Council (SFRPC) and several policies associated with these goals. The SFRPC reviewed the proposed Brown Amendment and found it was generally consistent with the Strategic Regional Policy Plan. Goal 11 and its associated policies encourage the conservation of natural resources and agricultural lands, and the use of existing and planned infrastructure. For the reasons stated previously, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Goal 12 and its associated policies encourage the retention of rural lands and agricultural economy. The CDMP encourages the retention of rural lands and agricultural economy. Because it was found that the Lowe’s Amendment was inconsistent with Policies LU-8F and LU-8G, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment was inconsistent with this regional goal and its policies. Goal 20 and its associated policies are to achieve development patterns that protect natural resources and guide development to areas where there are public facilities. Because it was found that there is no need for the Lowe’s Amendment and that it constitutes urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with these regional goal and policies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that: Ordinance No. 08-44, the Lowe’s Amendment, is not in compliance, and Ordinance No. 08-45, the Brown Amendment, is in compliance. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2009.
The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Findings Of Fact NOTICE In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code. LAND USE AND ZONING CONPLIANCE The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with: Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan; Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992. APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5). Proposed finding of fact 1 is unnecessary. COPIES FURNISHED: Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash & Block 215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859 Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash & Block 100 Southeast 2nd Street Suite 3600 Miami, Florida 33131-2130 Representing the Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Gail Fels Assistant County Attorney Metro Dade Center, Suite 2800 111 Northwest First Street Miami, Florida 33128 Representing Dade County Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA William H. Roberts Assistant General Counsel Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458 Representing DOT Toni M. Leidy Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Representing SFWMD Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Carolyn Dekle, Executive Director Sam Goren, Attorney at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Representing South Florida Regional Planning Council David M. DeMaio Attorney at Law One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation of Homeowner Associations Honorable Lawton Chiles Honorable Jim Smith Governor Secretary of State State of Florida State of Florida The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida 32399-0250 Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399
Conclusions An Administrati ve Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
The Issue Whether Lee County Comprehensive Plan Amendment CPA2015-00005, adopted by Ordinance No. 20-07 on June 17, 2020 (the “Plan Amendment”), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1
Findings Of Fact The Parties and Standing Petitioner, William J. Semmer, owns and operates seven businesses on San Carlos Island in Lee County, and owns 25 properties on San Carlos Island, including his personal residence, as well as several rental properties and commercial establishments. Petitioner, Joanne E. Semmer, lives and owns her personal residence in San Carlos Island, and owns and operates a business—Ostego Bay Environmental—on San Carlos Island at 1130 Main Street, directly across Main Street from the property subject to the Plan Amendment (“subject property”). Both Petitioners submitted oral comments to the County concerning the Plan Amendment at the adoption hearing on the Plan Amendment. Lee County (“the County”) is a political subdivision of the State of Florida, with the duty to adopt and amend its Comprehensive Plan in compliance with the Community Planning Act (“the Act”). See § 163.3167(1), Fla. Stat. Intervenor, Southern Comfort Storage, LLC, owns property and operates a business within the County, and owns the subject property. Intervenor applied for the Plan Amendment that is the subject of this final hearing. San Carlos Island The subject property is located on San Carlos Island, a non-barrier island in the unincorporated area of the County between the cities of Fort Myers and Fort Myers Beach. The Matanzas Pass lies to the south, between the island and Ft. Myers Beach. The pass provides access to Estero Bay through a channel with depths between 11 and 14 feet. That portion of the Bay lying north of the island is shallower, with average depths of between four and six feet. The island is approximately one mile long, and is bisected by two main roadways: San Carlos Boulevard, a north/south arterial roadway on the western side of the island that connects via a bridge to Fort Myers Beach; and Main Street, a collector roadway running east/west bisecting the island north and south. Under the existing Comprehensive Plan Future Land Use Map (“FLUM”), San Carlos Island is dominated by Industrial, Urban Community, and Suburban land use designations, generally located as follows: Suburban (residential) on both the eastern and western ends of the island, as well as in the island center north of Main Street; Industrial concentrated in the center of the island, both north and south of Main Street; and Urban Community concentrated in a corridor along San Carlos Boulevard connecting to Fort Myers Beach. Other large land uses include conservation lands, both uplands and wetlands. Another category—Destination Resort Mixed Use Water Dependent (“DRMUWD”)—was added by a plan amendment in 2009, converting 28 acres of Industrial and Suburban to this new use for the Ebtide development, which includes a 450-unit hotel with 75,000 square feet of convention space; 271 multi-family residential units; 10,000 square feet of office; 85,000 square feet of retail, and a marina. This development is approximately one quarter mile from the subject property. San Carlos Island is designated within the Iona-McGregor Planning Community (“the planning community”) pursuant to the Comprehensive Plan. According to the Comprehensive Plan, “[t]his community primarily has lands designated as Central Urban, Urban Community, Suburban, and Outlying Suburban …. This community, due to its proximity to the area beaches, will continue to be a popular area for seasonal residents.” The island is one of three discernable sub-areas of the planning community. According to the Comprehensive Plan: The San Carlos Island area, which is nearly built out today, will continue to develop its infill areas while maintaining its marine oriented nature. Residents of the community will address current planning concerns in a comprehensive review of this area and future amendments to this plan will be made to address these concerns. This area is anticipated to grow substantially from today to 2030. Historically, the economy of the island was driven by the commercial shrimping and fishing industries. Many of the industrial uses on the island were associated with processing seafood, especially packing and freezing seafood for transport beyond the island; warehousing and storage of equipment; and boat repair yards. Advances in technology, including shipboard freezing, have reduced the need for dockside packing houses. In 1950, there were seven packing houses on the island. There are only two packing houses currently in operation on the island, both of which are located south of Main Street, where the boats have access to deep water ports. Increased imports of shrimp from other countries has also contributed to the decline of the shrimping industry on the island.2 The amount of shrimp harvested from waters near the island peaked in the mid-1990s at over 6,000,000 pounds, but had fallen to slightly more than 2,000,000 pounds by 2015. Petitioner, Joanne Semmer, attempted to contradict the evidence that the local shrimp harvest is in decline because the data introduced does not include anything subsequent to 2015. She maintains that the industry has stabilized since 2015. Ms. Semmer testified that “they’re having a bang-up year this year.” Ms. Semmer’s testimony was based on her discussions with commercial shrimp fleet owners and is entirely hearsay evidence upon which the undersigned cannot rely for finding that the shrimp industry has stabilized.3 One of the more recent changes in the shrimping industry is the move from 50-foot to 100-foot shrimp boats, which can carry larger amounts of shrimp, thereby reducing the number of trips needed to harvest the catch. Due to the deeper channel, the properties south of Main Street can better accommodate the larger deep-draft shrimp boats used in the modern shrimping industry. In the last 20 years, the significant development and redevelopment on the island has been commercial and recreational in character. 2 The ratio of local to foreign-sourced shrimp in the United States had decreased from roughly 1:1 in the late 1970s, to roughly 1:5.8 in 2002. 3 Furthermore, Ms. Semmer’s testimony that the shrimpers are having a “bang-up year” and “one of their best years ever,” does not provide numbers of pounds of shrimp to compare with the data introduced by Intervenor. Redevelopment south of Main Street has been characterized by commercial and mixed-use development, rather than industrial development on the waterfront. Two large recreational marinas have been developed which provide commercial fishing berths and boat rentals. They have supporting restaurants, wet slips, dry storage, and some commercial retail. Generally, the area south of Main Street is in transition from traditional industrial to more commercial and recreational uses. The industrial uses north of Main Street are less intense and conducted on mostly unimproved properties. The uses include open yards for storing equipment, repairing and maintaining equipment and boats, parking and turnaround of large trucks used to transport seafood beyond the island, and areas to offload seafood products and equipment from boats. Waterfronts Florida Partnership In 1997, the island was designated by the state as one of the first communities in its Waterfronts Florida Partnership (“Waterfronts Florida” or “the partnership”) program. A self-created committee, of which Ms. Semmer was a vital member, applied for the Waterfronts Florida designation “to help the community deal with the capacity of shrimping and fishing boats that docked there seasonally, as well as educate residents and visitors about the island’s working waterfront.” The portion of the island encompassing the Waterfronts Florida Designated Area includes only property south of Main Street, and stretches from its intersection with the San Carlos Boulevard bridge one half-mile along the Matanzas Pass. Through the partnership, the community developed a self-guided working waterfront tour called “A Healthy Bay = Healthy Seafood,” which takes participants along a short trail with kiosks that provide information about the bay, the habitat, and the fish that live in it. Although it is self- guided, a volunteer is available on certain days to provide a narrated tour. Ms. Semmer is the volunteer program manager and frequently guides the tour herself. Ms. Semmer is also the executive director of the Ostego Bay Foundation Marine Science Center, which is integral to the partnership. The center provides a marine science experience through interactive exhibits, aquariums, hands-on tanks, collections and displays, and holds educational camps. One of the projects of the Waterfronts Florida committee was development of a special area management plan (the “special area plan”) for the island, which was adopted in 1999. The special area plan included the following vision statement for the community: San Carlos Island is a people-oriented community with an important working waterfront that includes vibrant commercial seafood and other marine-based industries and recreational opportunities. These assets contribute to making San Carlos Island an attractive community for its permanent and seasonal residents as well as an interesting area for visiting tourists. The first goal of the special area plan is to “[c]ontinue to support and develop” the island’s commercial fishing and passenger vessel industry “while diversifying the economic base” of the island “to enhance recreational and tourism-related opportunities” and support businesses along San Carlos Boulevard and Main Street. Objectives to accomplish that goal include “[d]iversify[ing] the island’s economic base by enhancing tourism, retail, and recreation opportunities.” The special area plan also refers to the need to possibly revise the water- dependent land use policies “which have been identified as limiting development options along the west side of Main Street.”4 The special area plan calls for developing language that will “increase flexibility and mix of land use types” allowable on land currently zoned for water-dependent uses, which may include traditional commercial fishing village industry “such as restaurants and mixed use commercial/residential.” The Subject Property The subject property is 7.47 acres located north of, and abutting, Main Street. The property is a combination of eight adjoining lots, most of which are narrow and elongated, with a variety of existing zoning designations— marine industrial, light industrial, commercial, and mobile home. The property was most recently the site of the Compass Rose marina, which, in 2006, was approved, through special exception and a variance, for a 286-dry slip boat storage facility at a maximum of 65 feet in height, 29 wet slips, and an associated boat launch; commercial spaces for member gatherings, a restaurant, ship store, and mini-storage. The marina and attendant uses were subsequently destroyed, except for the storage facility, which is located on the westernmost portion of the subject property. The subject property has access to Estero Bay via a 75-foot man-made canal along its eastern boundary. However, from the canal, vessels must access the Bay via a shallow channel with average depths of four to six feet. Commercial fishing and shrimping vessels require over six feet of depth at mean low tide. Most of the subject property is designated Industrial on the FLUM, with a very small portion in Suburban. According to the Comprehensive Plan, the Industrial designation is “reserved mainly for industrial activities and selective land use mixtures … includ[ing] industrial, manufacturing, research, educational uses, and office complex (if specifically related to 4 This document refers to Main Street as a roadway running north/south, rather than east/west. West of Main Street coincides with south of Main Street in the parlance of other documents describing Main Street as an east/west corridor. adjoining industrial uses)[.]” Retail, recreational, and service uses are allowed if they are limited to the sale of products “manufactured or directly related to that manufactured on the premises,” and are subject to acreage limitations. Residential uses are not allowed in the Industrial category. The subject property is also located within the San Carlos Island Water-Dependent overlay zone, the objective of which is to “protect marine- oriented land uses [on the island] from incompatible or pre-emptive land uses.” New development, and substantial redevelopment, within this overlay north of Main Street, is limited to marine industrial uses and recreational marinas. Surrounding Land Uses The subject property is surrounded by property in the Industrial category, with the exception of the property to its east. Lying across the 75- foot canal are three “fingers” of densely-developed residential property extending into Estero Bay which are designated Suburban. The developments are mostly mobile homes and manufactured housing, which, in large part, serve the workforce living on the island. The standard density in the Suburban land use category is six dwelling units per acre (“6 du/acre”). The Oak Street residential development lying directly across the canal is developed at a density of 7 du/acre, and is non-conforming. The Canal Point Mobile Home Park just east of Oak Street, encompasses two “fingers,” Nancy Lane and Emily Lane. Both “fingers” were developed at non-conforming densities of 9.6 du/acre and 11.6 du/acre, respectively. Continuing east along Main Street, Helen Lane and Oyster Bay are mobile home and manufactured housing communities developed at over 13 du/acre. Another residential development, Sportman’s Cove, lies north of the Industrial properties, directly on the Bay, and is developed at 13.1 du/acre. Industrial uses to the west include open storage, closed storage, warehousing, and distribution facilities. South of Main Street is a mix of more intense industrial uses with direct access to the Bay via Matanzas Pass’ deep water channels. A portion of the Industrial property directly north of the subject property is owned by Mr. Semmer. He conducts, or leases the property for, a variety of industrial uses. Mr. Semmer’s property is adjacent to the canal, and he contracts with some smaller shrimp boats and blue crab fishermen to dock and unload there. The property is often used for storage of equipment used by those industries, as well as an open yard for equipment repair. Mr. Semmer’s property was also used as a staging area during reconstruction of the Sanibel Causeway, providing a landing site for marine barges to load and unload large equipment needed for the reconstruction. The property was used to pour and set concrete forms used in the reconstruction process. Access to Mr. Semmer’s property from Main Street is via Ostego Drive, a platted street that runs through the eastern portion of the subject property, separating the upland property from that adjacent to the canal. During reconstruction of the Sanibel Causeway, large equipment trucks, and cement trucks accessed his property via this street. 2015 Plan Amendment Application and Concurrent Rezoning In 2015, Intervenor filed separate applications for the Plan Amendment and a concurrent rezoning of the subject property. The Plan Amendment sought to change the land use classification from Industrial and Suburban to Central Urban. In addition to residential uses, the Central Urban classification allows light industrial and commercial uses. The 2015 concurrent rezoning application sought planned development (“PD”) rezoning for a project consisting of 113 residential dwelling units (of which 38 would be affordable housing); a marina with 29 wet and 286 dry slips; and 30,000 square feet of commercial space, including a restaurant, 200 public parking spaces, and a civic/recreational space that would be available to the general public. The PD establishes a maximum structural height of 175 feet. In 2016, an adoption hearing for the Plan Amendment was scheduled before the County Commission, but action on it was deferred at the request of the Intervenor, who then submitted a new plan amendment application seeking to change the FLUM designation of the subject property to DRMUWD, along with text amendments to the DRMUWD classification. That plan amendment, as well as the concurrent rezoning, were denied by the County in 2019. The original Plan Amendment to Central Urban remained pending. On November 5, 2019, Intervenor filed a request for relief with the County pursuant to the Florida Land Use and Environmental Dispute Resolution Act (“FLUEDRA”), section 70.51, Florida Statutes; as well as a request for informal mediation pursuant to section 163.3181(4). These processes culminated in a mediated settlement agreement between the County and Intervenor whereby the County agreed to adopt the instant Plan Amendment, as well as the concurrent rezoning, for a project consisting of 75 residential dwelling units (reduced from the 113); a marina with 286 dry and 29 wet slips; and 30,000 square feet of commercial space, including a restaurant and waterfront civic/recreational space of 20,000 square feet (land area) that would be open to the general public. The maximum height for structures was reduced from 175 feet to 100 feet under the mediated settlement. The mediated settlement agreement also provided for conditions of development approval and property development regulations. The Plan Amendment The Plan Amendment changes the FLUM designation of the subject property from Industrial and Suburban to Central Urban, a classification which allows residential uses at a standard density range of 4-10 du/acre and up to 15 du/acre through the County’s “bonus density” program for affordable housing. 5 The Central Urban category allows development of residential, commercial, public and quasi-public, and limited light industrial land uses (e.g., wet slips, dry storage, marinas). The Comprehensive Plan encourages mixed-use future development in the Central Urban category. The maximum number of residential units that could be constructed on the subject property at the density of 15 du/acre is 113. The Comprehensive Plan does not govern intensity of non-residential uses. The evidence is insufficient to determine the maximum allowable buildout of the non-residential uses on the subject property. Challenges to the Plan Amendment Petitioners allege that the Plan Amendment: (1) creates internal inconsistencies with the existing Comprehensive Plan, in contravention of section 163.3177(2); (2) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f); and (3) increases density in the Coastal High Hazard Area (“CHHA”), in violation of section 163.3178(8). Internal Inconsistencies Petitioners allege the Plan Amendment is internally inconsistent with a number of Goals, Objectives, and Policies (“GOPs”) of the Comprehensive Plan. The specific allegations can be grouped, generally, as arguments that (1) the Plan Amendment is incompatible with, or will have negative impacts on, surrounding uses; and (2) the Plan Amendment will negatively impact hurricane evacuation by increasing density in the CHHA. Compatibility Petitioners allege the maximum density and intensity of development allowed under the Plan Amendment is incompatible with surrounding industrial uses, specifically Mr. Semmer’s industrial property directly 5 Density may be increased to 20 du/acre utilizing an existing transfer of development rights ordinance which does not apply to San Carlos Island. adjacent to the north, and the residential uses to the west; and will be destructive to the character of the island. With regard to compatibility, Petitioners allege the Plan Amendment is inconsistent with the following specific GOPs: FLUE Objective 2.2: Development Timing. Direct growth to those portions of the future urban areas where adequate public facilities exist or are assured and where compact and contiguous development patterns can be created. FLUE Policy 2.2.1.: Rezonings and Development of Regional Impact proposals will be evaluated as to the availability and proximity of the road network; central sewer and water lines; community facilities and services such as schools, EMS, fire and police protection, and other public facilities; compatibility with surrounding land uses; and any other relevant facts affecting the public health, safety, and welfare. FLUE Objective 2.6: Redevelopment. Future redevelopment activities will be directed in appropriate areas, consistent with sound planning principles, the goals, objectives, and policies contained within this plan, and the desired community character. FLUE Policy 5.1.5: Protect existing and future residential areas from any encroachment of uses that are potentially destructive to the character and integrity of the residential environment. Requests for conventional rezonings will be denied in the event that the buffers provided in Chapter 10 of the Land Development Code are not adequate to address potentially incompatible uses in a satisfactory manner. If such uses are proposed in the form of a planned development or special exception and generally applicable development regulations are deemed to be inadequate, conditions will be attached to minimize or eliminate the potential impacts or, where no adequate conditions can be devised, the application will be denied altogether. FLUE Policy 6.1.1: All applications for commercial development will be reviewed and evaluated as to: Traffic and access impacts (rezonings and development orders); Landscaping and detailed site planning (development orders); Screening and buffering (planned development rezoning and development orders; Availability and adequacy of services and facilities (rezoning and development orders); Impact on adjacent land uses and surrounding neighborhoods (rezoning); Proximity to other similar centers (rezoning); Environmental considerations (rezoning and development orders). FLUE Policy 6.1.3: Commercial developments requiring rezoning and meeting Development of County Impact (DCI) thresholds must be developed as commercial planned developments designed to arrange land uses in an integrated and cohesive unit in order to: Provide visual harmony and screening; Reduce dependence on the automobile; Promote pedestrian movement within the development; Utilize joint parking, access and loading facilities; Avoid negative impacts on surrounding land uses and traffic circulation; Protect natural resources; and, Provide necessary services and facilities where they are inadequate to serve the proposed use. FLUE Policy 6.1.4: Commercial development will be approved only when compatible with adjacent existing and proposed land uses and with existing and programmed public services and facilities. FLUE Policy 6.1.6: The land development regulations will require that commercial development provide adequate and appropriate landscaping, open space, and buffering. Such development is encouraged to be architecturally designed so as to enhance the appearance of structures and parking areas and blend with the character of existing or planned surrounding land uses. FLUE Goal 32: San Carlos Island [Water- Dependent Overlay]. All development approvals on San Carlos Island must be consistent with the following objective and policy in addition to other provisions of this plan. Objective 32.2: To manage growth, development, and redevelopment on San Carlos Island. To maintain and enhance the area’s quality of life and public and private infrastructure. Housing Element (“HE”) Policy 135.9.5: New development adjacent to areas of established residential neighborhoods must be compatible with or improve the area’s existing character. HE Policy 135.9.6: Lee County will administer the planning, zoning, and development review process in such a manner that proposed land uses acceptably minimize adverse drainage, environmental, spatial, traffic, noise, and glare impacts, as specified in county development regulations, upon adjacent residential properties, while maximizing aesthetic qualities. The Plan Amendment is not a rezoning or a development order. It does not, in and of itself, approve any specific development on the subject property. It approves the property for a mix of residential, commercial, and light industrial uses, and provides a maximum density for the residential use. FLUE Policies 2.2.1, 6.1.1, 6.1.3, and 6.1.4, do not apply to the Plan Amendment because it is not an application for specific commercial development, a rezoning, or a development order.6 The Plan Amendment cannot be inconsistent with Policy 6.1.6 because the policy merely provides the requirements for the land development regulations. It does not impose any requirement on plan amendments. The bases for Petitioners’ argument that the Plan Amendment creates internal inconsistencies regarding compatibility is limited to FLUE Goal 32; FLUE Objectives 2.2, 2.6, 32.1,7 and 32.2; FLUE Policies 5.1.5 and 32.1.1;8 and HE Policies 135.9.5 and 135.9.6. The Comprehensive Plan does not define “compatibility.” The Act defines “compatibility” as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” § 163.3164(9), Fla. Stat. 6 The Plan Amendment was considered concurrently with a PD rezoning which includes a more detailed development plan. To the extent that Petitioners allege the rezoning does not meet the requirements of policies 2.2.1, 6.1.1, 6.1.3, and 6.1.4, Petitioners’ remedy is a challenge to those development orders, pursuant to section 163.3215. (“Subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan.”). 7 Objective 32.1 was not cited in Petitioners’ Amended Petition for Formal Administrative Hearing as a provision with which the Plan Amendment is alleged to be internally inconsistent. However, the issue was tried by consent as neither Respondent nor Intervenor objected to Petitioners’ evidence on this issue, and all parties introduced evidence related to this allegation. 8 Policy 32.1.1 was not cited in Petitioners’ Amended Petition for Formal Administrative Hearing as a provision with which the Plan Amendment is alleged to be internally inconsistent. However, the issue was tried by consent as neither Respondent nor Intervenor objected to Petitioners’ evidence on this issue, and all parties introduced evidence related to this allegation. Petitioners contend that the Plan Amendment is incompatible with the surrounding uses because it introduces high density residential, which could be built to a maximum height of 100 feet; and commercial and recreational uses, into an area of industrial uses, including open storage, boat and equipment repairs, and unloading and packing seafood. Petitioners’ expert planning witness, Joseph McHarris, opined that the anticipated residential development is exactly the type of pre-emptive development anticipated and discouraged by the San Carlos Island Water- Dependent Overlay Zone. Mr. McHarris testified that “dropping in central urban,” the highest density and intensity use category, “right on top of industrial and right next to a suburban neighborhood is not good planning.” Mr. McHarris opined that residents of the “high-end condominiums” proposed for the property will not enjoy the view overlooking industrial outdoor storage yards, unloading cargo vessels, or the sounds and smells that are attendant thereto. The residential use will pre-empt any expansion or redevelopment of the existing industrial for more intense industrial uses. In fact, Mr. McHarris testified that the uses are so incompatible, that he would expect the new residents to push for ceasing the existing operations on those properties. Mr. McHarris did not rely upon any empirical evidence for his conclusion that the introduction of residential uses would be detrimental to the existing low- intensity industrial uses to the north and west of the subject property. His testimony was grounded in what “he would expect” to happen. Intervenor’s planning expert, Dr. David Depew, opined that in both his professional and personal experience, he has observed new waterfront residential and mixed use to coexist nicely with waterfront industrial and commercial. He cited Florida communities such as Apalachicola, Destin, and Cedar Key, generally, as examples of areas where newer residences and condominiums have developed in proximity to historic waterfront industrial uses without unduly negative effects on the historic uses. Dr. Depew made general references to “professional and personal” experiences, but gave no more detailed evidence regarding the coexistence of residential and industrial in traditional industrial waterfronts. The County’s expert planning witness, Brandon Dunn, is the principal planner for the County. He has worked in the County Department of Community Development for at least 13 years, 11 of those in the planning section. Mr. Dunn is extremely familiar with, and has extensive experience applying and interpreting, the Comprehensive Plan. Mr. Dunn testified that the Plan Amendment represents a transitional use between the existing traditional industrial uses north and west of the subject property and the suburban use east of the subject property. Developing the subject property for a mix of uses, including residential, commercial, and water-dependent light industrial (i.e., marina, wet-slips, dry storage), provides a “step-down” from the single use industrial properties to the north and west, to the traditional suburban residential development to the east. Mr. Dunn’s testimony is accepted as reliable and persuasive. There is insufficient evidence to support a finding that the Plan Amendment introduces uses which are incompatible with the surrounding uses, as that term is defined in section 163.3164(9). The Plan Amendment is not inconsistent with Policy 5.1.5 because it does not allow the encroachment of uses into residential areas which are destructive to the integrity and character of those areas. The entire island is only one mile in length, and residential and industrial, as well as commercial marine uses, exist throughout the island in relative proximity to each other. Petitioners introduced no evidence from which the undersigned can conclude that juxtaposition has been adverse to the residential development. New residential development at Ebtide is located in proximity to low-intensity industrial uses north of Main Street and no evidence was introduced to suggest that the new residential development has pre-empted the continuation or expansion of those established industrial uses. FLUE Objective 2.2 requires new growth to be directed to urban areas “where adequate public facilities exist or are assured and where compact and contiguous development patterns can be created.” Adequate public facilities (i.e., sewer, water, fire protection, emergency services, law enforcement, and schools) are sufficient to address the impacts of the Plan Amendment at maximum allowable density of use. One roadway segment impacted by the Plan Amendment is currently operating at Level of Service F, but is designated as “constrained,” and the Plan Amendment will not cause the “volume to capacity ratio” established in the Comprehensive Plan to be exceeded. In Mr. McHarris’s opinion, the Plan Amendment is inconsistent with Objective 2.2 because the uses allowed in Central Urban are not contiguous with the uses of any surrounding property. However, the properties east of the subject property, in the Suburban land use category, are developed for residential, a use which is allowed in Central Urban. Residential uses on the subject property will be contiguous with the adjacent Suburban development. Further, the Industrial category allows limited retail, recreational, and service uses; therefore, the change to the Central Urban designation, which allows commercial and light industrial development, does not introduce any radically-different uses than that allowed on the subject property, except for residential, under its current designation. HE Policy 135.9.5 requires that new development “adjacent to established residential neighborhoods” must be “compatible with or improve the area’s character.” The Plan Amendment is not inconsistent with this policy based on the findings above regarding compatibility of the Plan Amendment with surrounding residential uses. HE Policy 135.9.6 requires the County to “administer the planning, zoning and development review process” to ensure that proposed land uses “acceptably minimize adverse … traffic, noise, and glare impacts, as specified in county development regulations, upon adjacent residential properties[.]” Petitioners argue that this policy applies to the Plan Amendment, and that placement of residential uses adjacent to existing industrial uses will expose the residential uses to traffic, noise, and other adverse impacts, which cannot be “acceptably minimized.” Mr. McHarris testified that the unloading and transportation of seafood, as well as repair of boat and other equipment, with their attendant noises and smells, will be a nuisance to the residential uses allowed by the Plan Amendment, thus violating the requirement to minimize those effects on the residential properties. Petitioners did not establish that this policy applies during the plan amendment phase. While the policy includes the “planning process,” in addition to the zoning and development review process, the policy specifically refers to minimizing adverse impacts “as specified in the county land development regulations.” The land development regulations, rather than the Comprehensive Plan, contain the standards for setbacks, screening, buffers, and noise levels, in order to “acceptably minimize” those impacts to adjoining residential properties. The rezoning and site plan review of the development proposed to implement the Plan Amendment, rather than the Plan Amendment review process, are the appropriate processes in which to apply land development regulations for minimization of adverse impacts. Mr. McHarris opined that the Plan Amendment is contrary to Objective 2.6 because it is contrary to the desired “community character,” which he described as a “working waterfront.” Working waterfront is not a term that is used or defined in the Comprehensive Plan. To the extent that the reference is to the Waterfronts Florida designation in partnership with the state, the designation is strictly confined to that area south of Main Street. The desired community character is best reflected in the vision statement in the Comprehensive Plan for the Iona-McGregor Planning Community, of which the island is a designated sub-area. The Comprehensive Plan states, “The San Carlos Island area, which is nearly built out today, will continue to develop its infill areas while maintaining its marine-oriented nature.” The Comprehensive Plan provides that the overall planning community, given its proximity to the area beaches, “will continue to be a popular area for seasonal residents,” and that the entire planning community, is “anticipated to grow substantially from today through 2030.” Some of that growth was anticipated to be residential, as the planning community projected 17 acres of Central Urban for residential development through the year 2030. Plenty of acreage remains for residential development in the Central Urban category. The Plan defines infill as “the use of vacant land within a predominately developed area for further construction or development. These lands already have public services available but may require improvements to meet the current development standards.” The Plan Amendment is infill redevelopment of a former marina site, now utilized only for storage, where all public services are available. The community character is one of transition from historic industrial marine uses to waterfront commercial and mixed-use developments. The Plan Amendment allowing residential development is not inconsistent with that transitioning character. The Plan Amendment is not contrary to Objective 2.6 because it is infill development that is not inconsistent with the community character. Next, Petitioners allege the Plan Amendment is inconsistent with Goal 32, Objectives 32.1 and 32.2, and Policy 32.1.1, which relate to the San Carlos Island Water-Dependent Overlay Zone. Goal 32 provides that “[a]ll development approvals on San Carlos Island must be consistent with the following objective and policy[.]” Objective 32.1 provides that all development must be consistent with a series of policies “[t]o protect marine-oriented land uses” on the island “from incompatible or pre-emptive land uses.” Policy 32.1.1 provides: New development and substantial redevelopment within the Industrial … land use categor[y] … will only be permitted in accordance with the listed criteria. * * * North of Main Street – Within the water- dependent overlay zone which is defined as land within 150 feet of the shoreline: water-dependent marine industrial uses and recreational marinas. Landward of the overlay zone (150-foot line): marine-industrial uses, in addition to commercial or marine industrial uses which support the major industrial activities and recreational marinas. That portion of the subject property lying 150 feet landward of the canal is in the overlay zone. First, it must be noted that Goal 32 and its implementing objectives and policies apply to permitting of new development and redevelopment. Goal 32 sets requirements for “development approvals”; Objective 32.1 applies to “development”; and Policy 32.1.1 speaks to “permit[ing] new development and redevelopment.” Further, Policy 32.1.1 provides that the water dependent overlay zones “will be included in the Lee County zoning regulations[.]” The Plan Amendment is not an application for development permit. Enforcement of the water-dependent overlay zone restrictions will occur at the development order stage.9 9 Again, to the extent Petitioners contend the approved PD rezoning of subject property is inconsistent with these plan provisions, those issues are not properly before the undersigned in this proceeding. See § 163.3215, Fla. Stat. (“Subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan.”). Furthermore, Policy 32.1.1. applies to development and redevelopment “within the Industrial land use category.” The Plan Amendment changes the designation of the subject property from Industrial and Suburban to Central Urban. Thus, it is at least arguable that the policy does not apply to the Plan Amendment. Even if these Comprehensive Plan provisions apply to the Plan Amendment, the evidence does not demonstrate that the Plan Amendment is inconsistent with them. The amendment to the Central Urban land use category will not exclude either “light industrial,” such as water-dependent marine industrial uses, or a recreational marina on the subject property. At first blush, it appears that Policy 32.1.1 would prohibit residential development landward of the overlay zone on the subject property. However, the Comprehensive Plan provides that these regulations will be incorporated into the zoning regulations and “may be the subject of deviation requests during the planned development process.” Hurricane Shelter and Evacuation Petitioners allege the Plan Amendment is internally inconsistent with the hurricane evacuation and shelter provisions of Community Facilities and Services Element (“CFSE”) Goal 73, Objective 73.1, and Policies 73.1.1 and 73.1.2. CFSE Goal 73 is a general goal for the County to provide adequate evacuation and sheltering safeguards for major storm events. Objective 73.1 directs the County to “[w]ork towards attaining” out-of-county evacuation times consistent with the Statewide Regional Evacuation Study. Notably, the objective specifies the ways in which the County will “work toward attaining” those evacuation time—by increasing shelter availability, improving evacuation routes, and increasing public awareness. The objective does not require the County to either prohibit or limit residential density to achieve that end. CFSE Policy 73.1.1 requires the County to do periodic updates of its emergency management plan and the long-range transportation plan, in cooperation with the Metropolitan Planning Organization, and to identify critical evacuation routes. Policy 73.1.2 addresses replacement bridges on evacuation routes. None of these provisions are implicated by or address the Plan Amendment at issue. Petitioners did not prove by a preponderance of the evidence that the Plan Amendment is internally inconsistent with FLUE Goal 32; FLUE Objectives 2.2, 2.6, 32.1, and 32.2; FLUE Policies 5.1.5 and 32.1.1; HE Policies 135.9.5 and 135.9.6; and CFSE Goal 73, Objective 73.1, and Policies 73.1.1 and 73.1.2. Data and Analysis Petitioners allege the Plan Amendment does not appropriately react to data available to the County at the time the Plan Amendment was adopted, namely historical data constituting the community vision for the island. Ms. Semmer testified that the Plan Amendment is not an appropriate reaction to the San Carlos Island Community Redevelopment Area (“CRA”) Plan, which she testified was “the outcome of a long history of community working together to plan for its future.” When asked to identify specific provisions of the CRA plan to which the Plan Amendment is not an appropriate reaction, Ms. Semmer identified the fact that the plan recognized the existence of 917 residential units. She testified that “we felt that we were built out at the time, and we were happy with that … And this project, adding another 75 units, it’s going to be difficult to accommodate the additional traffic and the people.” The CRA plan was adopted in May 1991 and provided the background, findings, and data to support the designation of the entire island as a CRA, pursuant to section 163.358. The CRA Plan makes findings that blighted conditions exist on the island which justify designation as a CRA. The CRA Plan defines the characteristics of the redevelopment area, provides an infrastructure needs assessment, and establishes goals for the redevelopment area, as well as specific subareas. The CRA Plan actually notes the existence of 995 dwelling units on the island, not 917, according to the 1980 census. The CRA Plan does not contain any prohibition on increasing the number of dwelling units on the island, or reflect an intent to prohibit new residential development.10 On the contrary, the CRA Plan contains data which is supportive of the Plan Amendment. For example, one of the findings of blight conditions is “faulty lot layout in relation to size, adequacy, accessibility, or usefulness.” The CRA Plan finds that many lots “do not comply with minimum lot size requirements” and “would have significant difficulty being developed under current regulations.” The Plan Amendment combines eight lots, redevelopment of which is constrained by their size and configuration (narrow, elongated lots) with zoning designations of marine industrial, light industrial, commercial, and mobile home. Under the Plan Amendment, the lots are aggregated for a single development. The CRA Plan identifies the area north of Main Street and east of San Carlos Boulevard (where the subject property is located) as “a mixture of single-family, mobile home parks, marinas, commercial retail and service clubs.” San Carlos Island CRA Plan, p. 23. The CRA Plan does not identify this mix of uses as incompatible or undesirable, nor does it express an intent to discontinue mixed uses in that area. The Plan Amendment proposes a land 10 In contrast, the plan reflects the community’s staunch opposition to development of a parking garage on the island: “It is basic that [the island] neither become a parking lot for Fort Myers Beach (Estero Island) nor for Lee County. This would preclude construction of a parking garage on [the island] or additional surface parking for benefit of other areas of Lee County … or which would be utilized as temporary parking with the people parking their vehicles then being transported to another area by any means.” San Carlos Island CRA Plan, p. 11. “The residents and property owners of San Carlos Island are united in their opposition to construction of a parking garage, unless it can be shown that such garage is of benefit to those residents and owners and is not just part of a plan to permit development in some other area of Lee County.” Id. at p. 26. use category that allows a mix of residential, commercial, marina, and light industrial, underscoring the consistency of the Plan Amendment with the historic development pattern. The CRA Plan further describes more particularly the uses in the area of the subject property as “an area of light industrial development consisting of rental storage area, a service club, a fish house, and a large marina.” Id. at 24. The Plan Amendment retains this essential mix of uses and allows these uses, along with residential, to be developed on the subject property. Petitioners identified a report from the San Carlos Island Community Design Workshop, held February 21 and 22, 1992, as an example of data to which the Plan Amendment does not appropriately react. The workshop was conducted solely to determine “the best uses for a piece of County-owned property,” 5.6-acres in size, fronting on the Matanzas Pass. The report, which is entirely hearsay, notes that the community participants “[d]efinitely [did] not want[] high rises or major public attractions, Disney-style.” The report has no relevance to the Plan Amendment, which is not part of the property being considered for redevelopment during the workshop. Next, Petitioners allege the Plan Amendment is not an appropriate reaction to the data and analysis reflected in the documents designating San Carlos Island within the Waterfronts Florida partnership. Ms. Semmer testified that the Plan Amendment is inconsistent with the Community Vision contained in that document, to wit: San Carlos Island is a people-oriented community with an important working waterfront that includes vibrant commercial seafood and other marine-based industries and recreational opportunities. These assets contribute in making San Carlos Island an attractive community for its permanent and seasonal residents as well as an interesting area for visiting tourists. The designated “working waterfront” under the Waterfronts Florida partnership is located entirely south of Main Street. Thus, the Plan Amendment, affecting property north of Main Street—outside of the designated area—cannot be inconsistent with the vision expressed therein. Ms. Semmer’s contention that the Plan Amendment will convert property from industrial “working waterfront” use, contrary to the Waterfronts Florida document, is not credible. Likewise, the San Carlos Island Special Area Management Plan, adopted in 1999 to implement the Waterfronts Florida designation, applies mainly to the one-half mile long area designated under the program. Finally, Ms. Semmer introduced a 1978 resolution of the Board of County Commissioners stating, “The Board hereby establishes a policy of granting no additional multi-family zoning on Estero Island or San Carlos Island.” Ms. Semmer testified that this resolution recognizes that the island was “built out, that we could not handle any additional density[.]” Thus, Ms. Semmer argues that the Plan Amendment is not an appropriate reaction to that data because it allows new residential uses on the subject property. The resolution addresses rezonings, and the Plan Amendment is not a rezoning. Rezoning of the property has been undertaken and is not an issue cognizable in this challenge to the Plan Amendment.11 Petitioners did not prove that the Plan Amendment fails to react appropriately to data available to the County at the time it was adopted. The Plan Amendment is based on, and appropriately reacts to, the development trends on the island from intense industrial fishing-related uses to more recreational and commercial uses, including more mixed use uses both north and south of Main Street. The Plan Amendment is supported by data on the availability of public utilities to service the property—a condition necessary for infill development. The Plan Amendment will allow for a transition 11 Moreover, Petitioners did not prove that this resolution is still valid. between the industrial uses to the north and west of the subject property and the suburban uses to the east. State Requirements for Development in the CHHA Finally, Petitioners allege that the Plan Amendment increases residential density in the CHHA and does not meet the state requirements for such development set forth in section 163.3178(8). Section 163.3178 defines the CHHA as the “area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges for Hurricanes (SLOSH) computerized storm surge model.” § 163.3178(2)(h), Fla. Stat. The statute requires each local government comprehensive plan to designate the CHHA within its jurisdiction and “the criteria for mitigation for a comprehensive plan amendment in a [CHHA] as defined in subsection (8).” Id. Section 163.3178(8) reads, as follows: (8)(a) A proposed comprehensive plan amendment shall be found in compliance with state coastal high-hazard provisions if: The adopted level of service for out-of-county hurricane evacuation is maintained for a category 5 storm event as measured on the Saffir-Simpson scale; or A 12-hour evacuation time to shelter is maintained for a category 5 storm event as measured on the Saffir-Simpson scale and shelter space reasonably expected to accommodate the residents of the development contemplated by a proposed comprehensive plan amendment is available; or Appropriate mitigation is provided that will satisfy subparagraph 1. or subparagraph 2. Appropriate mitigation shall include, without limitation, payment of money, contribution of land, and construction of hurricane shelters and transportation facilities. Required mitigation may not exceed the amount required for a developer to accommodate impacts reasonably attributable to development. A local government and a developer shall enter into a binding agreement to memorialize the mitigation plan. It is undisputed that the subject property, and indeed most of the island, is located in the CHHA. The Plan Amendment allows residential density on the subject property, thereby increasing residential density in the CHHA.12 The County has adopted a 16-hour out-of-county evacuation time for a category 5 storm event (Level E storm surge).13 Based on the 2017 Update to the Southwest Florida Regional Evacuation Study (“Regional Evacuation Study”), the base scenario (i.e., the analysis used for growth management purposes) out-of-county clearance time for Lee County is actually 84.5 hours for a category 5 storm.14 Because the County’s adopted level of service (“LOS”) for out-of- county evacuation in a Level 5 hurricane has not been attained, it certainly will not be maintained under a scenario which includes development allowed by the Plan Amendment. The Plan Amendment does not meet the requirements of section 163.3178(8)(a)1. to be deemed compliant with state CHHA standards. The Regional Evacuation Study projects Lee County’s 2020 evacuation time-to-shelter for a Category 5 storm (Level E storm surge) as 96 hours, an increase of 11.5 hours from the 2017 projection. 12 No evidence was introduced to support a finding that the County has made a commensurate reduction in residential density in the CHHA. 13 The County had initially adopted an 18-hour out-of-county hurricane evacuation time; however, in 2006, the Florida Legislature set a default 16-hour evacuation standard for certain local governments. See ch. 2006-68, § 2, Laws of Fla. 14 That number has increased to 96 hours for 2020. Because the County has not attained the state-mandated 12-hour evacuation time-to-shelter, the County cannot maintain that metric under the Plan Amendment.15 Dr. Depew testified that, based on his research, a Category 5 hurricane shelter is located approximately 28 miles from the subject property, which is an approximate 44-minute drive. In his opinion, then, the Plan Amendment “maintains the 12-hour evacuation time to shelter” as required by section 163.3178(8)(a)2. Dr. Depew’s testimony was uncontradicted, but is not credible. Evacuation time-to-shelter is defined in the Regional Evacuation Study as “the time necessary to safely evacuate vulnerable residents and visitors to a ‘point of safety’ with in the county based on a specific hazard (i.e., Category 5 hurricane), behavioral assumptions and evacuation scenario.” Clearance time-to-shelter is “[c]alculated from the point in time when the evacuation order is given to the point in time when the last vehicle reaches a ‘point of safety’ within the county.” Clearance time does mean, as suggested by Dr. Depew, merely the drive time between a particular residential development and an existing qualifying shelter on a normal traffic day. That testimony is inadequate for the undersigned to find that the Plan Amendment meets the state CHHA requirement under section 163.3178(8)(a)2. Assuming, arguendo, that Dr. Depew’s testimony was credible and reliable, it would not be sufficient alone to establish that the Plan Amendment meets the standards of paragraph 2. The application of section 163.3178(8)(a)2. does not end with an analysis of evacuation time-to-shelter. The statute also requires that shelter space “reasonably expected to 15 The County has not adopted an LOS for “evacuation time-to-shelter”; instead, the County has adopted an LOS for shelter capacity: “in-county and on-site shelter for 10% of the population at risk in the Hurricane Vulnerability Zone under a Category 5 storm hazard scenario.” accommodate the residents of the development contemplated by” the Plan Amendment be “available.” The Regional Evacuation Study analyzes public shelter capacity and projects public shelter demand for each county in the region. For Lee County, the capacity of all shelters is 42,659 (for both the 2017 and 2020 base scenarios). The projected 2020 public shelter demand for a category 5 hurricane (Level E storm surge risk) is 47,018. That is an increase of 13,799 from the 2017 projection of 33,219. The data does not support a finding that the County has available shelter space to accommodate any new residents, yet alone those evacuating from development at the density allowed by the Plan Amendment. Dr. Depew attempted to undermine the reliability of the shelter demand projections, testifying that “there’s a very high error margin in these projections. In some instances, it’s as high as 50 percent from the anticipated demand[.]”16 Dr. Depew did not identify any documentation of the margin-of- error in the study, or offer any more reliable data from which the County (or the undersigned) could pull more accurate projections. On cross-examination, when asked to look at a specific operational demand projection, Dr. Depew was unable to identify whether it was “one of the ones with the 50 percent error margin.” Dr. Depew also criticized use of the base scenario because it “anticipates a hundred percent evacuation,” while the operational scenario anticipates something “closer to reality.” This attempt to persuade the undersigned that the base scenario shelter demand numbers are either unreliable, or inappropriate to use for purposes of evaluating the Plan Amendment, was likewise unpersuasive. The Evacuation Study Report defines the public shelter demand scenarios as follows: 16 The Regional Evacuation Study was introduced by Intervenor, for whom Dr. Depew was testifying. The Base Scenarios – which are used for planning and growth management purposes assume that 100% of the population-at-risk evacuates plus a (smaller) percentage of non- vulnerable population (shadow evacuation). The Operational Scenarios used in operations use the planning assumptions determined by the behavioral analysis which are assumed to be a more realistic set of assumptions. Although they do not reflect 100% evacuation of vulnerable residents, there is a significant percentage of shadow evacuation especially in major storm events. According to the study, the base scenarios are specifically designed for use in planning and growth management decisions, such as the one made by the County when it adopted this Plan Amendment. The Plan Amendment does not meet state CHHA standards by way of section 163.3178(8)(a)2. Finally, the statute provides that a plan amendment may be deemed to meet state CHHA standards via mitigation. The developer may mitigate hurricane evacuation impacts of development in the CHHA by payment of money, contribution of land, or construction of hurricane shelters or transportation facilities. Intervenor has committed, through the mediated settlement agreement, to mitigation in the form of either construction of an on-site shelter to withstand category 5 hurricane winds and storm surge, or a fee-in- lieu thereof pursuant to the County’s requirements. The settlement agreement contains detailed specifications for shelter construction should the County choose that option. The settlement also requires the developer to submit a post-storm recovery plan for review and approval by Lee County Emergency Management. The settlement provides that “[p]rior to any redevelopment of the site … an agreement must be executed between the county and the property owners” to require the mitigation. Petitioners argue that this commitment is not sufficient to meet the statutory mitigation requirements because the developer has not yet executed a written mitigation agreement with the County to provide any specific mitigation construction or payment. They criticize the process for “put[ting] off the mitigation plan until redevelopment of the site.” The statute requires that the “local government and a developer shall enter into a binding agreement to memorialize the mitigation plan,” but does not address the timing of the binding agreement relative to the adoption of the Plan Amendment. The Comprehensive Plan, at CME Policy 101.1.4, contains provisions very similar to section 163.3178(8) for plan amendments that increase density in the CHHA. With regard to mitigation, Policy 101.1.4 requires the applicant to “enter into a development agreement to memorialize the mitigation plan prior to adoption of the plan amendment.” Petitioners have not challenged the Plan Amendment as inconsistent with Policy 101.1.4, but rather with the statutory provision. In contrast to the policy, the plain language of the statute does not require the mitigation agreement to be executed prior to adoption of the Plan Amendment. Finally, section 163.3178(8) allows for “[a]ppropriate mitigation [] provided that will satisfy subparagraph 1. or subparagraph 2.” By referencing the subparagraphs requiring maintenance of out-of-county evacuation time and 12-hour evacuation time to shelter, the statute requires mitigation to the extent necessary to meet, in this case, the 16-hour out-of-county evacuation clearance time or the 12-hour time-to-shelter standard. However, the statute also limits the developer’s mitigation to “the amount required for a developer to accommodate impacts reasonably attributable to development.” The statute does not require the developer to build shelters, make transportation improvements, contribute land, or make payments to reduce the county’s existing deficit to achieve out-of-county evacuation clearance time or address the County’s overall shelter space deficit. The statute clearly limits the developer’s contribution to that required to address the impacts “reasonably attributable to the [specific] development.” Intervenor argues that providing the mitigation to offset hurricane evacuation or sheltering impacts associated with the particular development is sufficient to meet the statutory requirement. However, to allow a developer to construct residential density in the CHHA and mitigate only the hurricane evacuation or time-to-shelter impacts associated with that particular development, when the adopted out-of-county hurricane evacuation clearance time has not been achieved, is contrary to the statutory requirement. The same is true for allowing shelter construction to mitigate only the impacts of the particular development when the adopted time-to-shelter has not been achieved or a shelter deficit exists. If the undersigned were to accept the County’s and Intervenor’s proffered interpretation of subparagraph 3., that would render meaningless the first sentence, which references to subparagraphs 1. and 2. and requires the mitigation to “satisfy” subparagraphs 1. and 2. Those subparagraphs directly address “maintaining” the adopted out-of-county and time-to-shelter clearance times. Under the proffered reading of section 163.3178(8)(a)3., any developer could satisfy the state requirements for CHHA construction by mitigating the impacts of the specific development on a local government’s hurricane evacuation clearance time regardless of whether the adopted out- of-county clearance time is met. That interpretation is unworkable and is rejected. Alternatively, Intervenor maintains that the Plan Amendment meets the state requirements for increased density in the CHHA under section 163.3178(8)(a)3. Because: (1) the Comprehensive Plan anticipates additional residential development in the Iona/McGregor planning community, which is within the CHHA; and (2) the impact of the Plan Amendment on both the out-of-county hurricane evacuation time and time-to-shelter is “de minimis.” To the first point, according to Table 1(b) of the Comprehensive Plan, the County has allocated a total of 375 acres of residential development in the Central Urban category within the planning community through the year 2030. Mr. Dunn testified that the County has approved residential development of 360 acres, leaving a balance of 15 acres available for residential development. His conclusion is that the County anticipated additional residential density in the CHHA because almost the entire planning community is located in the CHHA. Mr. Dunn’s conclusions appear valid based on the data and analysis in the Comprehensive Plan. However, the logic is circular. The County’s decision to locate more residential development within the CHHA is not dispositive of the question of whether that decision meets the state requirements for residential density in the CHHA.17 That determination is the subject of the instant de novo proceeding. To prove their second point, the County and Intervenor introduced into evidence a memorandum prepared by Daniel Trescott, a professional planner with the firm of Trescott Planning Solutions, Inc., analyzing the impact of the Plan Amendment at its maximum residential buildout (113 total dwelling units) on the County’s out-of-county evacuation clearance time and time-to-shelter (“the Trescott memo”). The relevant findings of the Trescott memo are as follows: (1) development of 113 dwelling units results in an additional 124 vehicles to evacuate and the need for an additional 48 shelter beds; (2) the Plan Amendment will increase out-of-county evacuation time by 1.2 minutes; and 17 Moreover, the Plan Amendment represents a decision to locate more Central Urban within the CHHA which was not reflected on the FLUM when the 2030 “residential by future land use category” allocations were made, as reflected in Table 1(b). The table reflects the overall acreage to be developed for residential use of the total acreage in the Central Urban category at that time. (3) the estimated clearance time-to-shelter would increase one-fifth of 1.2 minutes based on a projection that 21 percent of project residents would evacuate to a public shelter rather than out-of-county. The Trescott memo concludes, “This small increase will not cause the out-of-county evacuation time to increase incrementally above 84 hours,”18 and that the impact on clearance time-to-shelter would be “even more de minimis.” The Regional Evacuation Study calculates hurricane evacuation impacts in 30-minute increments. Based on that model, the impact from development allowed under the Plan Amendment will not result in an incremental increase in either out-of-county hurricane evacuation clearance time or time-to-shelter. Section 163.3178(8)(a)3. does not contain an exception for “de minimis” impacts. Furthermore, the statutory standard is not based on the Regional Hurricane Evacuation projected times for out-of-county and time-to- shelter in a Category 5 hurricane (both of which are projected at 96 hours for 2020), but on the adopted LOS for out-of-county evacuation clearance time of 16 hours, and the statutory time-to-shelter time of 12 hours. The alternative argument by the County and Intervenor that the Plan Amendment meets the state standard for increased residential density in the CHHA is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Comprehensive Plan Amendment adopted by Ordinance 20-07 on June 17, 2020, is not “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 4th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 Mark A. Trank, Esquire Lee County Attorney's Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902-0398 Amanda Swindle, Assistant County Attorney Lee County Attorney's Office 6th Floor 2115 Second Street Fort Myers, Florida 33901 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit Room 1802, The Capitol Tallahassee, Florida 32399-0001 S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2021. Mark Jacob Lee County Attorney's Office 2115 2nd Street Fort Myers, Florida 33901-3012 Richard Barton Akin, Esquire Henderson, Franklin, Starnes & Holt, P.A. Post Office Box 280 Fort Myers, Florida 33902 Russell P. Schropp, Esquire Henderson, Franklin, Starnes and Holt, P.A. 1715 Monroe Street Post Office Box 280 Fort Myers, Florida 33902 Joshua E. Pratt, Esquire Administration Commission Governor’s Legal Office The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue Whether the Petitioner, Carla Brice, has demonstrated by a preponderance of the evidence that she is entitled to a vested rights certificate to develop certain real property located in Alachua County, Florida without complying with the Alachua County Comprehensive Plan?
Findings Of Fact The Subject Property. The property at issue in this proceeding (hereinafter referred to as "Lot 111"), consists of approximately 6 acres of real property located in Alachua County, Florida. Lot 111 is currently owned by the Petitioner, Carla Brice. Ms. Brice acquired Lot 111 through inheritance from her father, Carl L. Brice. Ms. Brice acquired the property in approximately January of 1993. Early History of the Development of Arredonda Estates. During the 1950s Mr. Brice acquired a platted subdivision in Alachua County known as Arredonda Estates Unit 1 (hereinafter referred to as "Unit 1"). Approximately 100 acres of property located adjacent to Unit 1 were also acquired by Mr. Brice. Unit 1 met the existing plat law of Alachua County. Mr. Brice proceeded with the development of Unit 1 and the sale of lots therein. Part of the 100 acres acquired by Mr. Brice was subsequently platted and developed for sale as residential lots as Arredonda Estates Unit 2A (hereinafter referred to as "Unit 2A"). Arredonda Estates Unit 2B (hereinafter referred to as "Unit 2B") was to be located to the north of Unit 2A. Because of the lack of access out of Unit 2B, the then County engineer of the Alachua County, Roy J. Miller, informed Mr. Brice that he would not allow Mr. Brice to proceed with Unit 2B until Mr. Brice completed development of approximately 33 acres of real property located to the east of Unit 1. Mr. Miller believed that there would be better access from the various phases of Arredonda Estates if the 33 acres were developed first because there would be access out of the 33 acres onto County Road 24 and onto Broken Arrow Road to the east of the 33 acres. Mr. Miller, as the County engineer, wielded a great deal of influence in the development of property in Alachua County at the time Mr. Brice developed Units 1 and 2A and at the time he was beginning development of the 33 acres. Although the evidence failed to prove that Mr. Miller could have legally required Mr. Brice to develop the 33 acres before developing Unit 2B, the uncontroverted evidence proved that it was believed that Mr. Miller's approval was necessary in order to complete a development. The 33 acres surround Lot 111 on the east, west and north. The south boundary of Lot 111 is County Road 24, Archer Road. One of the two access roads to County Road 24 from the 33 acre development was located to the immediate east of Lot 111 and the other was located to the immediate west of Lot 111. Lot 111 is bounded on the south by County Road 24. The 33 acres were to be developed as Arredonda Estates (hereinafter referred to as "Unit 4"). The Development of Unit 4. Mr. Brice informed Mr. Miller that he was concerned about developing Unit 4 before developing Unit 2B because Mr. Brice planned to develop Lot 111 as a shopping center. He did not plan to build the shopping center until all phases of Arredonda Estates were completed, including Unit 2B. In agreeing to develop Unit 4 before Unit 2B, Mr. Brice was concerned about making expenditures for larger drainage facilities and obtaining additional easements necessary for the development of Lot 111 before he planned to begin actual development of the shopping center. Mr. Brice informed Mr. Miller of these concerns. The shopping center Mr. Brice planned to develop was to consist of 296,000 square feet of paved surface and 50,000 square feet of roof area. These plans required a redesign of the drainage for Unit 4. In particular, the following modifications were necessary: In conclusion I find it necessary to change the diameter of pipe #7 from an 18 inch diameter to a 21 inch diameter, placed at a 0.15 percent slope pipe grade. Some necessary amendments are required at this point. The larger size pipe in place will cost $9.20 per linear foot. Some sixty-two feet are needed, therefore the total cost will be $570.40. Brice exhibit 9. Despite Mr. Brice's concerns, Mr. Miller continued to insist on the development of Unit 4 before Unit 2B and Mr. Brice proceeded with the development of Unit 4. Unit 4 was platted on July 19, 1970. The plat was recorded in Plat Book H, Page 30, Official Records of Alachua County. The initial design of Unit 4 provided for one point of ingress and egress on to State Road 24 from Unit 4. Mr. Miller required that two points of ingress and egress be provided and Mr. Brice agreed. The evidence failed to prove that this requirement was agreed to in exchange for any representation from Alachua County that Mr. Brice would be allowed to develop the shopping center. The final plat provided two means of ingress and egress to State Road 24 and one means of ingress and egress to County Road Number Southwest 24-C (Broken Arrow Road). Lot 111 is contained on the plat. No intended use for Lot 111 was designated on the plat of Unit 4. The plat simply identifies the lot. See Brice exhibit 5. The plat identifies the development of residential lots only. The 33 acres was initially zoned as "A" (agriculture). In order to develop Unit 4 it was necessary to obtain approval of re-zoning of the property as R1C, residential use. The re-zoning of the 33 acres was sought and approved. Lot 111 was also zoned for agricultural use when acquired. On February 11, 1969, 4.27 acres of Lot 111 were re-zoned from "A" (agriculture) to "BR" (retail sales and service). On July 1, 1969, a special use permit allowing a mobile home trailer sales agency was issued for use of 1.1 acres contiguous to the 4.27 acre parcel of Lot 111 by Alachua County. On July 7, 1975, the 1.1 acres, which the special use permit had been issued for, was zoned from "A" to "BR." Construction plans for site improvements for Unit 4 were subsequently prepared, filed with Alachua County and were approved. See Brice exhibit 10. Included on the plans is a rectangular shape identified as "Proposed Shopping Center" containing indications of measurements representing 50,000 square feet of building space. The "Proposed Shopping Center" designation is located on Lot 111. Mr. Brice was subsequently informed that the site improvements for Unit 4 were approved by Alachua County. The evidence failed to prove, however, that Alachua County specifically considered or approved the construction of a shopping center on Lot 111 in approving the site improvement plans for Unit 4. The approved site improvements for Unit 4 were ultimately made and accepted by Alachua County in September of 1970. Government Action Relied Upon. Mr. Miller intended to allow Mr. Brice to develop Lot 111 as a shopping center "as he had planned." Mr. Miller's approval was conditioned on the completion of development of Units 2B and 4 and the sale of lots thereon. The shopping center to be approved was to be limited to what Mr. Brice "had originally proposed" which was a shopping center of 50,000 square feet. Mr. Brice complied with Mr. Miller's condition that he complete development of Unit 4 before developing Unit 2B. The evidence failed to prove that it was reasonable for Mr. Brice to believe that Mr. Miller's representations concerning the approval of Mr. Brice's intended development of a shopping center on Lot 111 would last indefinitely. It was also unreasonable for Mr. Brice to believe that the representations of Mr. Miller would survive indefinitely beyond the time that Mr. Brice completed development of Arredonda Estates. In July of 1970, Alachua County Zoning Regulations contained the following site plan approval requirement for shopping centers: No permit shall be issued for construction of a shopping center until the plans and specifications, including the design of ingress and egress roads, parking facilities, and such other items as may be found of importance have been approved by the zoning commission. Based upon this provision, Mr. Miller did not have the authority to approve the construction of a shopping center on Lot 111 in July of 1970. If the representations made by Mr. Miller to Mr. Brice concerning construction of the shopping center had been made in July, 1970, it would be unreasonable for Mr. Brice to rely upon Mr. Miller's representation because of the Alachua County Zoning Regulations quoted in finding of fact 31. If the representations were made before July, 1970, it would be reasonable for Mr. Brice to rely on Mr. Miller's approval of the shopping center because the evidence failed to prove that Alachua County Zoning Regulation quoted above was in effect before July, 1970. The weight of the evidence proved that Mr. Miller's representations were made before July, 1970. Detrimental Reliance. Mr. Brice proceeded with the development of Unit 4. Roads and drainage facilities associated with Unit 4 were constructed by 1971. The cost of these improvements was approximately $68,989.54. The total cost of improvements associated with Unit 4 was $121,947.54. Mr. Brice also had to obtain a drainage easement but the evidence failed to prove the cost of doing so. The exact amount expended on Unit 4 attributable to work performed just for Lot 111 and the shopping center was not proved by Ms. Brice. One method of allocating costs associated with the development of Unit 4 to Lot 111 suggested by Ms. Brice is to determine the percentage of acreage Lot 111 represents of the whole of Unit 4: approximately 17.9 percent. Applying this percentage to the total costs equals $21,828.61. The weight of the evidence, however, failed to prove that $21,828.61 was actually incurred in association with Lot 111. The evidence failed to prove that it would be reasonable to attribute any part of the expenditures listed in paragraphs 1, 3, 6, 8, 9, 11 or 12 of Brice exhibit 30 as attributable to Lot 111. Based upon evidence presented by Alachua County, the total expenditures made by Mr. Brice associated with Lot 111 and the shopping center were approximately $1,005.50. Subsequent Events. Mr. Brice caused preliminary plans for a shopping center for Lot 111 to be developed. Brice exhibit 14. Those plans were never submitted for approval and no building permit was issued approving the construction of a shopping center for Lot 111. The preliminary plans for the shopping center indicate a substantially different configuration for the shopping center than indicated on the site improvement plans for Unit 4. Brice exhibit 14. No final development plan or plat approving a shopping center on Lot 111 was issued by Alachua County. Efforts were made during the 1970s to market Lot 111 for development as a shopping center. These efforts were not successful. As a part of this effort, Mr. Brice incurred $7,000.00 for the construction of a three dimensional model of the proposed shopping center evidenced on the preliminary plans. It has been suggested that Mr. Brice did not proceed with the development of the shopping center during the 1970's and into the 1980's for a number of reasons: A dispute between Mr. Brice and Alachua County arose in 1976 concerning the road in Unit 2A; A dispute also arose concerning the water system in the area of Arredonda Estates; The state of the economy was not conducive to development. The evidence, however, failed to prove why the shopping center was not developed. In 1973, Alachua County created a development review committee. Final site plans for commercial sites were required to be approved by the committee. Mr. Brice did not obtain approval for the proposed shopping center or seek assurances from Alachua County that Mr. Miller's representations concerning the shopping center on Lot 111 were still valid. During 1982 and 1983, Mr. Brice became aware of proposed revisions to the Alachua County Comprehensive Plan. Mr. Brice met with Alachua County officials concerning the revisions and followed the progress of the revisions. In 1984 Alachua County adopted a comprehensive plan. Under this plan commercial use of Lot 111 was not allowed except for a neighborhood convenience store with square footage of 10,000 square feet. In 1985, during a meeting with Alachua County personnel, Mr. Brice and his attorney were informed that Lot 111 could not be developed as a shopping center without a comprehensive plan amendment. No amendment was applied for. In 1989, offers to purchase Lot 111 were received. Those offers were continent upon the property being developed consistent with the BR zoning. Ms. Brice's name, then known as Carla B. Sutton, first appears in connection with Lot 111 in 1989 when offers to purchase Lot 111 were received. The evidence, however, failed to prove that she was owner of Lot 111 at that time. In 1989 or 1990, a conceptual site plan review was applied for by David Miller, Mr. Brice's representative, concerning Lot 111. Brice exhibit 21. The application was considered at an Alachua County Development Review Committee meeting on March 22, 1990. Consideration of the application was deferred for two weeks. The development Review Committee met on April 19, 1990 and considered the application for conceptual site plan review for Lot 111. The Committee was concerned about how the fact that Lot 111 had been zoned BR before the comprehensive plan had been adopted impacted the fact that development of Lot 111 as a shopping center was prohibited by the comprehensive plan. A decision was delayed for a month and staff was asked to prepare a report dealing with similarly situated parcels. By January 1991, proposed language providing for vesting of certain zoning had been drafted by Alachua County. Brice exhibit 24. By letter dated January 30, 1991, Kurt Larsen, Director of the Office of Planning and Development of Alachua County, informed all affected property owners that Alachua County was "considering" allowing a period of time during which existing zoning would be honored. Brice exhibit 25 Comments were invited. By letter dated February 15, 1991, counsel for Ms. Brice responded to Mr. Larsen's January 30, 1991 letter. Brice exhibit 26. A Transmittal Draft of the Future Land Use Element of the Alachua County Comprehensive Plan dated April 1991 was sent to the Florida Department of Community Affairs for review. See Brice exhibit 27. The Draft provided a two- year period during which undeveloped parcels zoned for a use that was otherwise inconsistent with the Comprehensive Land Use Plan would be allowed to be developed essentially in accordance with existing zoning. This policy was ultimately rejected by the Department of Community Affairs. Alachua County informed Ms. Brice of the action of the Department of Community Affairs by letter dated September 18, 1991. Brice exhibit 28. Rights That Will Be Destroyed. Alachua County adopted a Comprehensive Land Use Plan in 1991. The following policy was agreed to in a compromise between Alachua County and the Department of Community Affairs concerning commercial enclaves: Policy 3.4.3. Commercial Enclaves are designed within the Urban Cluster on the Future Land Use Map. These sites shall be subject to the following location and compatibility standards: Development of Commercial Enclaves shall be required to meet all concurrency requirements. Development shall be required to minimize access from arterials and collectors. Whenever possible, driveways shall use common access points to reduce potential turn movements. A maximum of 20,000 square feet of gross leasable area shall be permitted within each enclave. Uses may include neighborhood convenience centers consistent with Policy 3.8., offices consistent with Policy 3.9.1. and sit-down restaurants. The land development regulations for this land use category shall specify performance standards required to mitigate any adverse impact of such development on adjacent land uses and affected public facilities. Such performance standards shall include buffering and landscaping provisions, site design measures to locate such uses away from less intensive adjacent land uses, signage and parking restrictions, and intensity provisions (e.g. height and bulk restrictions). In the interim, until land development regulations consistent with these policies are adopted, the standards and criteria governing Commercial Enclaves shall be implemented through the County's Development Review Committee process. This policy shall be reviewed by 1993 to determine the effectiveness of the land use category. Mr. Brice was informed, after contacting the Alachua County Growth Management Department, that his development of Lot 111 was limited by the commercial enclave policy. Pursuant to the commercial enclave policy, development of Lot 111 is limited to a size of 20,000 square feet and the uses to which Lot 111 may be put are less than would be allowed under BR zoning. Carla Brice's Reliance and Detriment. The evidence in this case failed to prove that Ms. Brice, the current owner of Lot 111 and the applicant in this case, was aware of any representations made by Mr. Miller. More importantly, the evidence failed to prove that Ms. Brice in any way reasonably relied upon the representations made to her father. The evidence also failed to prove that Alachua County made any representations to Ms. Brice that she would be allowed to develop Lot 111 as a shopping center. In fact, Alachua County has indicated just the opposite to Ms. Brice since she became the owner of Lot 111. In light of the amount of time that passed after Mr. Miller's representations were made to Mr. Brice and the intervening events concerning development in Alachua County before Ms. Brice acquired Lot 111, any reliance by Ms. Brice on Mr. Miller's representations would not be reasonable. Finally, the evidence failed to prove that Ms. Brice detrimentally relied upon any representation of Alachua County concerning the development of Lot 111. Only Mr. Brice, Ms. Brice's father, made expenditures related to the development of Lot 111 as a shopping center. I. Procedural Requirements. On June 9, 1993 Ms. Brice filed her Application seeking an equitable vested rights certificate or a statutory vested rights certificate. On September 22, 1993 Kurt Larsen, Director, Department of Growth Management, Alachua County, informed Ms. Brice that the Application was denied. Ms. Brice appealed the decision to deny the Application by letter dated September 28, 1993. The Division of Administrative Hearings was requested by letter dated January 18, 1994, from Alachua County to assign a hearing officer to conduct a formal administrative hearing. The formal administrative hearing of this matter was conducted on March 14, 1994.
The Issue The issue in this case is whether Marion County's small- scale comprehensive plan amendment 01-S27 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001). Specifically, Petitioners contend that the amendment is: (1) inconsistent with goals, objectives, and policies of the County's Comprehensive Plan--specifically, Future Land Use Element (FLUE) Objectives 1 and 2, and Policies 2.7 and 2.8; and (2) inconsistent with Florida Administrative Code Rule 9J- 5.006(5), which requires that proliferation of urban sprawl be discouraged. (Other contentions are inapplicable. See Conclusions of Law, infra.)
Findings Of Fact Petitioners all reside in the Sherman Oaks subdivision in Marion County, Florida. Sherman Oaks is adjacent to and northwest of the parcel which is the subject of the County's small-scale comprehensive plan amendment 01- S27 (Plan Amendment). This "Amendment Parcel" consists of 2.375 acres located at the northwest corner of the intersection of State Road 40 (oriented east-west at that location) and NW 80th Avenue (oriented north-south at that location) (the Intersection) near Ocala, Florida. The Plan Amendment changes the land use designation for the Amendment Parcel from Urban Reserve to Commercial. Pertinent History of the County's Comprehensive Plan. The County originally adopted its Comprehensive Plan in January 1992. Because of an objection by the Department of Community Affairs (DCA) that the original Comprehensive Plan allocated too much land area to the Urban area, the County adopted remedial amendments on April 7, 1994, which added a new land use classification, Urban Reserve. The Comprehensive Plan defines the Urban Reserve land use classification as follows: This classification provides for the expansion of an urban service area or an urban expansion area in a timely manner. The underlying land uses in this classification shall be those of the rural lands until, through the Plan Amendment process, these areas are designated as Urban Expansion Area or Urban Service Area on the Future Land Map series. Commercial land use designation falls within the generalized Urban Area category in the County's Comprehensive Plan. From the date of the adoption of remedial amendments in 1994 through this date the Amendment Parcel has had a land use designation of Urban Reserve. The Amendment Parcel is part of a larger parcel of land designated Urban Reserve which extends for approximately a mile to the west of the Amendment Parcel, half a mile to the south of the Amendment Parcel, and greater than two miles to the north of the Amendment Parcel. (There also is some Medium Density Residential, which falls with the generalized Urban Area land use category, approximately two miles north of the Amendment Parcel; this is a major residential development called Golden Ocala). All of the property on the east side of the Intersection for approximately half a mile on either side of State Road 40 has had a land use designation of Urban Expansion, which allows urban and commercial uses, since 1992. Marion County has extensive areas in the western half of the County designated as Rural Land. Approximately a mile west of the Amendment Parcel, the property along the north and south sides of State Road 40 changes land use designation from Urban Reserve to Rural Land. Prior to adoption of the County’s Comprehensive Plan in 1992, the Amendment Parcel had a general retail zoning classification of B-2 (Community Business), which has remained in place since the date of the Comprehensive Plan adoption. The Plan Amendment would allow the Intervenor to make immediate use of the Amendment Parcel under its existing zoning classification of Community Business. The County’s Comprehensive Plan also contains a land use classification of Rural Activity Center (RAC) for existing commercial nodes in the Rural Land area. According to the definition in the Comprehensive Plan, this classification: provides for the utilization of mixed-use areas and the infilling of those areas under appropriate circumstances. Rural Activity Centers provide for a nodal-type development pattern. When the Comprehensive Plan was originally adopted in 1992, the County identified a number of RACs and included them on the Future Land Use Map in the Comprehensive Plan. The Intersection was not made a RAC in 1992 because it was surrounded by Urban Expansion lands that were changed to Urban Reserve in 1994. Otherwise, it probably would have been designated a RAC because there already was commercial development on the east side of the Intersection in 1992. Designation as a RAC would have allowed Intervenor to make use of its B-2 (Community Business) zoning classification from 1992 forward. The evidence was not clear why Castro's Corner at the intersection of U.S. Highway 27 and County Road 225A was designated a RAC. It is not now surrounded by Rural Lands; however, from the evidence presented, it is possible that Castro's Corner was surrounded by Rural Lands at the time it was designated a RAC. Pertinent History of the Amendment Parcel In light of the see-saw history of decision-making on applications for comprehensive plan amendments affecting the Amendment Parcel since 1998, it is not surprising that Petitioners are perplexed by this Plan Amendment. In 1998 application was made to change the land use designation from Urban Reserve to Commercial on a parcel that included the Amendment Parcel and approximately seven additional acres lying immediately to the west of the Amendment Parcel, for a total of 9.9 acres, with the entire application parcel having frontage on State Road 40. The County's Planning Department recommended approval of the land use amendment. Staff's report stated that the proposed Commercial land use designation would "continue the formation of a commercial node at the intersection . . . consistent with FLUE Policy 2.7"; would "coordinate development with sufficient roadway capacity and access management procedures, and available water and sanitary sewer facilities as required by FLUE Policy 2.8"; was "compatible with the existing commercial uses on the east side of the intersection"; and was "generally compatible with the areas's [sic] topography, soils and environmental features." Staff's report concluded that the recommendation for approval was based on findings that the request would "not adversely affect the public interest"; was "consistent with the identified objectives and policies in the Marion County Comprehensive Plan"; and was "compatible with the surrounding land uses." The County's Planning Commission agreed with planning staff's recommendation and voted 7-0 for approval, but the County Commission denied the application. In 2000 the Amendment Parcel was included in another application for a land use designation change from Urban Reserve to Commercial on 13.88 acres in the northwest quadrant of the Intersection. This time, the Planning Department recommended denial. As to compatibility with the goals, objectives, and policies of the County's Comprehensive Plan, staff's recommendation was based on findings that the proposed amendment was "not compact and contiguous to the Urban Area (FLUE Policy 2.18)"; did "not preserves [sic] the county's rural areas while allowing the provision of basic services by directing growth to existing urban areas and commercial nodes (FLUE Objective 3.0)"; "does not coordinate development with availability of public facilities such as centralized potable water and sanitary sewage facilities (FLUE Policy 2.18)"; "does not promote the efficient use of resources and discourage scattered development and sprawl because it is not located in an area of increasing urban residential development and commercial development (FLUE Policy 2.7)"; and "does not encourage development that is functional and compatible with the existing land uses adjacent and in the surrounding area (FLUE Policy 1.21)." As to consistency with Florida Administrative Code Rule 9J-5 urban sprawl indicators, staff found that the proposed amendment "promote[d] the development of low-intensity, low-density, or single use development"; "promote[d] urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban development"; did "not protect adjacent agricultural areas and activities"; allowed "for land use patterns or timing which disproportionately increases the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education health care, fire and emergency response, and general government"; did "not encourage development which would, by it's [sic] location, provide a clear separation between rural and urban uses"; did "not encourage an attractive and functional mix of uses"; and "encourage[d] development which would result in the loss of significant amounts of open space." The report concluded that it was based on findings that "[g]ranting the amendment will adversely affect the public interest"; the "proposed amendment is not compatible with land uses in the surrounding area"; and "[g]ranting the amendment is not consistent with Chapter 163, Florida Statutes, Rule 9J-5, F.A.C., and the Marion County Comprehensive Plan." The Planning Commission voted 6-1 to recommend denial. The application was withdrawn prior to the transmittal hearing before the County Commission. In August 2001, Intervenor submitted an application to change the land use on the property it owns at the Intersection (containing 2.85 acres) from Urban Reserve Area to Commercial. The southern boundary of the original application parcel consisted of 275 feet of frontage on the north side of State Road 40. The eastern boundary of the original application parcel fronted on NW 80th Avenue, with 459 feet of frontage. The County's Planning Department recommended that Intervenor's application be denied. The stated basis for the recommendation was that the proposed plan amendment represented "an extension of urban type land use into the rural area" and that "[d]evelopment of the property as commercial was not compatible with adjacent land uses." Planning staff took the position that the proposed Commercial land use designation did "not encourage compact, contiguous development (FLUE Objective 2)"; did "not preserve the County's rural character (FLUE Policy 2.7)"; did "not coordinate development with sufficient roadway capacity (FLUE Policy 2.8)"; and was "not compatible with the existing adjacent uses (FLUE Objective 1)." Staff also took the position that the proposed Commercial land use designation application would "promote urban sprawl as specified in the Urban Sprawl Rule 9J-5.006(5)(g)" because it was "not compatible with surrounding land use designations"; "discourage[d] a functional mix of uses"; and "discourage[d] [sic?] a land use pattern that disproportionately increases local government's fiscal burden of providing necessary public services." In conclusion, staff based its recommendation on findings that the application would "adversely affect the public interest"; was "not consistent with the identified objectives and policies in the Marion County Comprehensive Plan"; and was "not compatible with the surrounding land uses." The Planning Commission heard Intervenor's presentation and comments from objecting property owners, including Petitioners, and voted 4-3 to deny the application. At a public hearing conducted on December 11, 2001, the County Commission heard Intervenor's presentation and comments from objecting property owners, including Petitioners. During the hearing, at the suggestion of the Commission, Intervenor agreed to amend the application to reduce the total amount of property for which the land use change was requested from the original entire parcel of 2.85 acres to a smaller 2.375 acre parcel (now the Amendment Parcel). The purpose of the reduction in the size of the Amendment Parcel was to exclude a heavily treed area on the north boundary of the original application parcel to create a buffer for residential property owners residing to the north and northwest of the Amendment Parcel. Intervenor also agreed to allow parallel access across the back (north) of the Amendment Parcel to the property fronting State Road 40 to the west, in the event of future development of those properties. After amendment of the application, the County Commission voted 5-0 to approve. Amendment Parcel Characteristics and Surroundings. Both State Road 40 and 80th Avenue in the area of the Intersection are heavily traveled and frequently congested. The Intersection is signalized, and traffic backs up for long distances during busy times when the light is red. The Amendment Parcel and the land to the west between State Road 40 and Sherman Oaks to the north is vacant. The property in the northeast quadrant of the Intersection has a land use designation of Urban Expansion, which allows commercial usage. The property in this quadrant of the Intersection is already commercially developed. There is a combination convenience store/restaurant building at the immediate Intersection. To the north of that parcel along 80th Avenue is Golden Hills Mobile Home Park and the sewage treatment facility serving the mobile home park. The southeast quadrant of the Intersection also has an Urban Expansion land use designation and is also already commercially developed. A prior convenience/general store at the immediate southeast corner of the Intersection has been torn down, and a temporary fruit stand currently occupies the immediate corner. This quadrant of the Intersection also includes a two-story building with retail businesses on the first floor. The property in the southwest quadrant of the Intersection, lying immediately to the south of the Amendment Parcel, has an Urban Reserve land use designation but is currently used as part of an operating horse farm. While it may not completely explain the swings in the decision-making of the County's planning staff, the County Planning Commission, and the County Commission with respect to northwest quadrant of the Intersection, the evidence was that traffic on both State Road 40 and 80th Avenue increased substantially in the five years preceding the County Commission's decision to approve Intervenor's amended application. During this time period, 80th Avenue to the south of the Intersection was extended farther southward to State Road 200, which was widened to six lanes during the same time period. In addition, the Marion County school system constructed a combination high school/middle school on SW 80th Avenue approximately two to three miles south of the Intersection, generating additional traffic. As a result of these changes (together with general growth in the County), 80th Avenue has become a major north/south corridor road in western Marion County, both to the north and to the south of State Road 40. In addition, there was discussion at the County Commission hearing on the Plan Amendment about the initiation by the Florida Department of Transportation (FDOT) of a four- laning road improvement project on State Road 40, including at the Intersection and to the east and west of this Intersection. It was represented that, while the project was not within FDOT's three-year work program, FDOT was in the process of acquiring large parcels for needed drainage retention areas for the project, including a parcel to the west of the Amendment Parcel and a parcel encompassing most of the southeast corner of the Intersection. At final hearing in this case, written communications from FDOT regarding the project confirmed that FDOT had initiated the process of design and right-of-way acquisition for the project but did not have a finalized project time line. A preliminary project time line prepared by FDOT showed construction more than two years away, but the time line also established that the FDOT four-laning project on State Road 40 is underway. The prospect of four-laning State Road 40 played a part in the County Commission's thinking that the timing was right to change the land use designation of the Amendment Parcel to Commercial. Intervenor's Alleged Inaccurate Representations The County's application form cautions applicants that false statements on the application could result in denial. However, it was not proven that denial is mandatory in the case of any inaccuracy. Rather, the evidence was that information in the application can be corrected and supplemented during the review process. Intervenor's application contained inaccurate representations as to the proximity of some public facilities in relation to the Amendment Parcel. Petitioners made no attempt to prove the significance of those inaccuracies, except as to centralized water and sewer water facilities. Intervenor's application stated that the nearest centralized water and sewer facilities were those at the Golden Hills Mobile Home Park on the east side of NW 80th Avenue. The application also stated, as part of its justification, that private central water and sewer was available. The evidence proved that the Golden Hills sewage treatment facilities are presently inadequate for use by the mobile home park itself and are being upgraded to meet current needs of the park. The facilities probably would not be available for Intervenor's use at the Amendment Parcel. While the Golden Hills sewage treatment facilities likely will not be available for Intervenor's use at the Amendment Parcel, the evidence was that the County is working with a large development called Golden Ocala, located approximately five miles north of the Amendment Parcel, for construction of a regional wastewater treatment plant to serve that development. If built, the regional facility might have capacity available for Intervenor's use at the Amendment Parcel. Intervenor's application and presentation to the County Commission on December 11, 2001, stated that the Amendment Parcel is undeveloped and that there is no existing agricultural use on the parcel. While these statements were not proven to be untrue, Petitioners presented evidence that hay was grown on the Amendment Parcel from the late 1980's through spring 2001. Three crops of hay were harvested each year. Each harvest consisted of approximately 18-20 bales; each bale brought approximately $45. Petitioners questioned the accuracy of representations as to the natural buffer strip between the Amendment Parcel and Sherman Oaks. Petitioners did not dispute the existence of relatively dense trees in the buffer strip. However, they are concerned that the line of trees does not extend to the west all the way to the entrance to Sherman Oaks off State Road 40; if additional commercial development occurs to the west on State Road 40, there will not be a similar natural buffer. Petitioners also point out that the trees in the natural buffer strip are not thick enough to form an impregnable barrier to access, light, and sound. They concede, however, that the natural buffer is helpful and that there is no similar natural buffer between them and commercial development to the east across NW 80th Avenue. Petitioners concede that the 75-foot buffer strip is wide enough to contain the entire natural buffer. However, they thought the buffer strip would have to be 90 feet wide to contain the drip lines of all the trees so as to protect their root systems. They conceded that the building setback line probably would prohibit construction of buildings within the drip line of the trees but were uncertain as to whether the setback line would apply to parking lots and driveways. Petitioners' evidence was insufficient to prove that the 75- foot buffer was not enough to protect the natural buffer. Petitioners' evidence was sufficient to prove that, during the presentation before the County Commission, Intervenor's representative may have misspoken or exaggerated on some points (e.g., the timing of FDOT's widening of State Road 40, the distance between the Amendment Parcel and the entrance to Sherman Oaks, and the extent of past and existing commercial development at the Intersection). But the evidence was that the County Commission questioned the information presented by Intervenor, and information also was presented by Petitioners and the County's planning staff; considering all the information presented, it was not proven that the County Commission based its decision on misinformation. At the final hearing, Petitioners raised the issue of stormwater runoff. Petitioners questioned whether stormwater can be managed on the Amendment Parcel without adversely impacting Sherman Oaks. Evidence presented by Petitioners proved that topography would make onsite stormwater management difficult. Natural runoff appears to flow in a northeasterly direction towards an already-stressed stormwater facility within Sherman Oaks. Intervenor suggested that the site could be "tilted" by grading to reverse natural runoff flow so as to contain runoff in the southwestern or western part of the site. Petitioners suggested that "tilting" may not be permissible due to the relatively shallow depth to limerock under the Amendment Parcel site, but Petitioners' evidence was not sufficient to prove that drainage could not be addressed onsite through "tilting." Petitioners also questioned the accuracy of traffic counts presented in the Planning Department's staff report on Intervenor's application. Staff used 2000 traffic counts that did not take into account all of the increased traffic as a result of the opening of the new school south of the Amendment Parcel. But the County's Planning Director explained that the traffic analysis required for a land use designation change does not have to be as rigorous and accurate as the analysis required at the time of concurrency determination. At that time, Intervenor probably will be required to conduct a detailed and up-to-date traffic analysis that would take into account actual traffic counts related to the new school. Other Pertinent Comprehensive Plan Provisions. Objective 1 of the County's FLUE states: Upon Plan adoption, growth and development will be coordinated by ensuring the appropriate compatibility with adjacent uses, topography, soil conditions, and the availability of services and facilities through the preparation, adoption, implementation and enforcement of innovative land development regulations, including mixed use techniques. Objective 2 of the County's FLUE states: In order to promote the efficient use of resources and to discourage scattered development and sprawl, Marion County shall establish and encourage development within Urban Areas. This will discourage the proliferation of urban sprawl, encourage infill and facilitate the provision of urban services through: Land Development Regulations that specify standards which allow higher intensities of land use in areas where adequate services are available and where specific design criteria are met, and future land uses are coordinated with appropriate topography conditions and soil types. A generalized Future Land Use Map which designates an appropriate amount of acreage in each land use category that reflects projected needs, existing development patterns, environmental suitability, availability of infrastructure, and community values. Policy 2.7 of the County's FLUE states: The County shall discourage scattered and highway strip commercial development by requiring the development of such uses at existing commercial intersections, other commercial nodes and town centers of mixed uses. Policy 2.8 of the County's FLUE states: The following performance criteria shall be followed when providing for the location of commercial and industrial land uses within the designated Urban Area: Protection of the development from natural hazards by locating development away from areas that have natural hazards or that may contain sensitive natural resources; Require concurrency be met to ensure adequate services from available public utilities and other urban services; Minimize environmental impacts by ensuring all appropriate permits are obtained and adhered to; Prevent over allocation of commercial land by requiring the adherence to needed acreage based on population projections; and Provide buffering from other land uses to minimize conflicts. Objective 4 of the Stormwater Management Sub-element of the County's Infrastructure Element states: Marion County's land development regulations shall implement procedures to ensure that, at the time a development permit is issued, adequate stormwater management facility capacity is available or the developer will be required to construct storm water facilities within his development according to County standards. Policy 4.1 of the Stormwater Management Sub-element of the County's Infrastructure Element provides some detail as to required content of the procedures, including a requirement: In addition, developers will comply where applicable with the Water Management districts flood control criteria for stormwater quantity and quality. (Citations omitted.) Policy 4.3 of the Sanitary Sewer Sub-element of the County's Infrastructure Element provides in pertinent part: The County's land development regulations shall provide for issuance of development permits within the identified wastewater service areas consistent with the following guidelines: * * * c. Where public wastewater treatment facilities are required, they shall be available concurrent with the impacts of development. Facilities which meet county specifications and the level of service standards for the service areas will be provided by the developer in the interim and will be connected to central facilities when they become available . . .. Internal Consistency. Petitioners presented no evidence that the Plan Amendment did not adhere to "needed acreage based on population projections." Consistent with the pertinent provisions of the County's Comprehensive Plan itself, the County's Planning Department Director testified that the County's Comprehensive Plan encourages the planning concept of nodal commercial development (allowing commercial development on all four corners of an intersection). This planning technique allows clustered commercial development in commercial nodes, locating in outlying areas, to provide localized commercial services for residents. Notwithstanding testimony that Petitioners probably would not patronize retail stores at the Intersection, the expert testimony was that commercial node development is intended to assist in reducing trips and average trip lengths by providing limited commercial services to area residents without necessitating their travel to a centralized commercial area. In the County’s Comprehensive Plan, the concept of commercial node development in non-urban areas is the basis for the RAC land use designation. See Finding of Fact 7, supra. Both of the County's witnesses testified that commercial development of all four quadrants of the Intersection is consistent with the County’s Comprehensive Plan policy of encouraging commercial node development because it has long-existing partial commercial development, is signalized, and provides access in all directions. The evidence did not prove that the County's Comprehensive Plan requires traffic, sanitary sewer, or drainage (or any other) concurrency at the time of the adoption of a plan amendment. The County has adopted in its Land Development Code a concurrency management system requiring that concurrency be established prior to the issuance of a development order (such as a building permit). The evidence was that determining capacity and concurrency at the development order stage in the development process is standard and customary, and is used in a number of jurisdictions in the state. Regardless of the land use classification and zoning classification of the Amendment Parcel, when the Intervenor initiates application for approval of an actual development order, the Intervenor will be required under the County's Land Development Code to establish concurrency, including traffic, sanitary sewer, and drainage concurrency. There was some evidence to support the contentions of some Petitioners that commercial development of the Amendment Parcel would not be compatible with residential and rural land uses in the area and that that NW 80th Avenue is a "line of demarcation" between urban uses and rural uses. But Petitioners failed to prove those contentions by the greater weight of the evidence, including the 1998 recommendations of the County Planning Department staff and Planning Commission to approve a land use change to Commercial west of NW 80th Avenue. In addition, the Comprehensive Plan's designation of land west of NW and SW 80th initially as Urban Expansion in 1992 and as Urban Reserve in 1994 anticipated ultimate urban development of this Intersection, as well as properties approximately a mile to the west of the Intersection. In addition, the Comprehensive Plan designated two RACs to the west of the Amendment Parcel on State Road 40 (between the Amendment Parcel and the City of Dunnellon). The first RAC is three miles to the west of the Amendment Parcel, and the second RAC is seven miles to the west of the Amendment Parcel. The evidence was that the Intersection would have been a RAC had it not been designated Urban Expansion and then Urban Reserve. Finally, at least one Petitioner conceded the point and contested only the timing of commercial development of the Amendment Parcel. Alleged Urban Sprawl. Petitioners presented no analysis of urban sprawl indicators. They also presented no evidence that the Plan Amendment allocated commercial land in excess of demonstrated need in the County. As found, the Amendment Parcel is across NW 80th Avenue from existing commercial and other urban development; in addition, provision of nodal commercial development is intended to counter at least some symptoms of urban sprawl.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding that Marion County's small-scale amendment 01-S27 is "in compliance." DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2002. COPIES FURNISHED: Mary M. Bartlett 8080 Northwest 2nd Street Ocala, Florida 34482 Robert S. Inglis 8078 Northwest 2nd Street Ocala, Florida 34482 Helen Thomas 8130 Northwest 2nd Street Ocala, Florida 34482 Paul and Joan Lussier 8071 Northwest 2nd Street Ocala, Florida 34482 Wanda Negron 8076 Northwest 2nd Street Ocala, Florida 34482 Thomas D. MacNamara, Esquire Marion County's Attorney's Office 601 Southeast 25th Avenue Ocala, Florida 34471 Steven Gray, Esquire Hart & Gray 125 Northeast First Avenue, Suite 1 Ocala, Florida 34470 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue is whether the City of Jacksonville's small scale development amendment adopted by Ordinance No. 2003-1070-E on October 27, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Bartram is a limited liability corporation which owns an 8.5-acre tract of land at 5720 Atlantic Boulevard between Bartram Road and St. Paul Avenue in Jacksonville, Florida, or less than a mile east of the Hart Bridge (which crosses into downtown Jacksonville) and around one-quarter mile south of the Arlington River.4 The property is now vacant; from 1939 until 1990, however, a three-story, 125,000 square-foot hospital (with three separate "out buildings") for children operated on the site. The unused buildings remained on the site until they were demolished in 1998. On October 27, 2003, the City approved an application filed by Wal-Mart's counsel (originally on behalf of the property's former owner, the Christopher Forrest Skinner Trust, and then the new owner, Bartram) for a small scale plan amendment. This was formalized through the adoption of Ordinance No. 2003-1070-E, which changed the property's land use designation on the FLUM, a component of the Future Land Use Element (FLUE) in the Plan, from RPI to NC. Both land use categories are commercial classifications. If the amendment is found to be in compliance, Wal-Mart intends to construct a 40,000 square-foot free-standing grocery store with a 7,500 square-foot outparcel for other retail stores. The grocery store will be operated 24 hours per day, 7 days per week. Wal-Mart has also agreed to file a second land use application to change approximately 3.0 acres of the site to Conservation (CSV), which means that portion of the property cannot be developed in the future. Ordinance No. 94-1011-568, enacted in 1994, requires that small scale plan amendments be reviewed with a companion rezoning application. This is to ensure that when examining an application for a small-scale amendment, the City’s determination of "in compliance" is predicated on both the Plan and its Land Development Regulations. Pursuant to that requirement, the City also approved a change in the zoning on the property from Commercial, Residential, Office (CRO) to Planned Unit Development (PUD). Under the PUD, the City has limited development of the site to a 40,000 square-foot grocery store and a 7,500 square-foot outparcel for limited retail uses; imposed a limitation on curb cuts; provided for setback restrictions, building orientation, and design standards; and preserved over 70 trees on the property as well as green space. These limitations and restrictions are more stringent than those set forth in the NC category. The City's rezoning decision (Ordinance No. 2003-1071-E) has been challenged in Circuit Court by one of Petitioners. (While the new zoning and site plan appear to be solidified, the City concedes that it has the authority at a later date to approve modifications to the site plan, or even change the zoning on the property to another category that is allowed under NC.) On November 18, 2003, Petitioners filed their Petition challenging the plan amendment. In their unilateral Prehearing Stipulation,5 Petitioners contend that the amendment is not supported by adequate or professionally acceptable data and analysis, and it is inconsistent with the standards governing "the location and extent of commercial uses," "the current designation of Bartram Road as a local road," and "the protection of established residential neighborhoods." At hearing, counsel for Petitioners further stipulated that the allegations of internal inconsistencies regarding urban sprawl and roadway/traffic capacity (contained in the Petition) were being withdrawn. A request to add affordable housing as an issue was denied as being untimely. The parties have stipulated that Petitioners and Intervenors reside, own property, or own or operate a business within the City and offered comments, recommendations, or objections to the City prior to the adoption of the amendment. Accordingly, these stipulated facts establish that Petitioners and Intervenors are affected persons and have standing to participate in this action. Because the City's action involves a small scale (as opposed to a large scale) development plan amendment, the Department of Community Affairs did not formally review the plan amendment for compliance. See § 163.3187(3)(a), Fla. Stat. The Existing and Proposed Land Use on the Site The City's Plan, which was adopted in 1990, includes five types of commercially denominated land use categories, two of which are RPI and NC. The RPI category (in which category the Bartram property has been assigned since 1990) is a mixed- use category "primarily intended to accommodate office, limited commercial retail and service establishments, institutional and medium density residential uses." Among others, this category also authorizes large institutional uses, office-professional uses, veterinarians, filling stations, off street parking, nursing homes, residential treatment facilities, day care centers, and other institutional uses "when sited in compliance with [the FLUE] and other elements of the 2010 Comprehensive Plan." According to the Plan Category Description in the FLUE (pages 50-51, Respondent's Exhibit 13), "RPI developments are frequently appropriate transitional uses between residential and non-residential areas." While the existing RPI designation on the property allows Commercial Neighborhood zoning, which may include a grocery store like Wal-Mart proposes, because of some uncertainty over this, and its desire to have a PUD on the property, the City has required that Bartram seek a land use change to NC with PUD zoning, which serves to limit the range of allowable uses and imposes other development restrictions. The Plan Category Description in the FLUE (pages 51- 52, Respondent's Exhibit 13) provides that NC designated lands "serve the needs of contiguous neighborhoods"; they "will generally be located within a ten minute drive time of the service population"; they allow uses which "serve the daily needs of contiguous neighborhoods"; and they must not "penetrate into residential neighborhoods." They may include "convenience goods, personal services, veterinarians, filling stations and other low intensity retail and office-professional commercial uses developed in freestanding or shopping center configurations," and "[n]ormally, such centers will be anchored by a food or drug store and will contain four to ten other supporting retail and office uses." Finally, NC sites "should abut a roadway classified as a collector or higher facility on the [City's] adopted functional classification system map." The Property and Surrounding Area As noted above, the property has been vacant since 1990, when an existing hospital was closed; demolition of the buildings was completed some eight years later. On its northern boundary (which measures approximately 400 feet), the property abuts Atlantic Boulevard, an extremely busy, six-lane roadway classified on the City’s Highway Functional Classification Map (Map) as a principal arterial road. The eastern boundary of the property (which runs around 480 feet deep) abuts Bartram Road, a two-laned paved road with an 80-foot right-of way which runs south from Atlantic Boulevard for around one-half mile and then curves east where it meets University Boulevard (a north-south arterial road) a few hundred feet away. When the hearing was conducted in January 2004, or after the amendment was adopted, Bartram Road was still classified as a local road on the City's Map. Whether it is still classified as a local road at this time is not of record.6 On its western side, the property abuts St. Paul Avenue, a local road which dead ends just south of Bartram's property on Heston Road (another local road), while nine single-family lots are located adjacent to the southern boundary of the property (and on the northern side of Heston Road). The property is around one-quarter mile west of a highly developed major intersection at Atlantic and University Boulevards. The property (on both sides of the roadway) lying between the eastern side of Bartram's property and the major intersection is currently classified as Community/General Commercial (CGC), which authorizes a wide range of slightly more intense commercial uses than are authorized in NC. That land use category is "generally developed in nodal patterns and [is intended to] serve large areas of the City." Directly across Bartram Road to the east (and in the southeastern quadrant of Bartram Road and Atlantic Boulevard) is an older shopping center anchored by a 50,000 square-foot Publix grocery store. The shopping center also has a sandwich shop, florist, pizza parlor, and beauty salon, and sits on a tract of land approximately the same size as Bartram's property. That parcel has approximately the same depth as the Bartram property (480 feet), and the rear of the stores come as close as 35 feet to the single-family homes which lie directly behind the shopping center. Since 1887, the St. Paul Episcopal Church has occupied the 5-acre tract of property directly across St. Paul Avenue to the west. Besides the church itself, a library, office building, educational wing, parish fellowship hall, and a small house (all owned by the church) sit on the property. From the church property to the Little Pottsburg Creek, or around a quarter of a mile to the west, a large, single parcel of land fronts on the southern side of Atlantic Boulevard and is classified as RPI. While aerial photographs appear to show that the property west of the church is either undeveloped or largely undeveloped, under its present RPI classification it may be used for commercial, institutional, or medium density residential purposes at some time in the future. The distance from the intersection of Atlantic and University Boulevards to the Little Pottsburg Creek appears to be six-tenths of a mile or so. An apartment complex (the Villa Apartments) sits on the northeastern quadrant of Bartram Road and Atlantic Boulevard on a fairly narrow sliver of land classified as Medium Density which extends north-northwest some 1,200 feet or so to the Arlington River, a tributary of the St. Johns River. Immediately west of the apartment complex along the northern side of Atlantic Boulevard (and across the street beginning at the eastern part of Bartram's property and extending west) the land uses along the roadway include a relatively small CGC parcel containing a dry cleaning establishment and an upholstery shop; an approximate 350 to 400- foot strip of Low Density Residential (LDR) property (which faces more than half of the Bartram site) with two single-family homes located directly on Atlantic Boulevard, as well as two grandfathered non-conforming uses (a plumbing establishment and a coin shop); then an RPI parcel (which faces the western edge of Bartram's property and extends perhaps 150 feet along the road) with a small office development consisting of 8-10 offices; and finally more LDR parcels until the road crosses the Little Pottsburg Creek. Two local roads which dead end on Atlantic Boulevard and provide access into the residential areas north of Atlantic Boulevard are Oak Haven Street, which terminates directly across the street from the Bartram property, and Campbell Street, which terminates in front of the St. Paul Episcopal Church. Except for the limited commercial uses which front on the northern side of Atlantic Boulevard, and the apartment complex which lies in the northeastern quadrant of Atlantic Boulevard and Bartram Road, virtually all of the property directly across the street to the north and west of Bartram's property running 1,200-1,500 feet or so to the Arlington River is made up of an old, established residential neighborhood (known by some as the Oak Haven neighborhood) consisting of single-family homes, some of which (closest to the Arlington River) are on larger multi-acre tracts and have historical significance. Indeed, the oldest home in the City of Jacksonville, built around 1848, is located in this area. The area directly south of the property and to the west of Bartram Road is classified as Low Density Residential and contains single-family homes for perhaps one-half mile or so. As noted above, some of these homes back up to the rear of the Bartram property. The Amendment and Review by Staff Under the process for reviewing small scale amendments, the application is first reviewed by the City's Planning and Development Department for completeness and accuracy. After the staff reviews the data and performs an analysis of the data, the application is assigned an ordinance number. A staff report is then prepared, and the application is set for hearing before the City's Planning Commission (Commission), an advisory board which makes a recommendation on the application. The Commission's decision (which in this case was a recommendation to deny both applications) is then reviewed by the Land Use and Zoning Committee of the City Council, which consists of 7 members (and voted 5-1 in this case to approve the applications), and the matter is finally considered by the full 19-member City Council (which in this case approved the applications by a 13-2 vote, with 4 members abstaining or absent). After the application was filed, among other things, the City staff reviewed various maps, the FLUM, a zoning atlas, other relevant portions of the Plan, and data provided by other governmental agencies. It also made an inspection of the site and other potentially affected properties in the neighborhood. In preparing its report, the staff analyzed the roadway system, the neighborhood character, the site characteristics, the commercial node, compatibility with the Plan and existing uses, and compatibility with the Strategic Regional Policy Plan and State Comprehensive Plan. A more detailed account of the data relied upon by the staff and its analysis of that data is found in Respondent's Exhibit 19. Besides the staff report, there are underlying work papers (not attached to the report) used by the staff to support its findings (Respondent's Exhibit 33). As a part of its review and analyses, the City considered and applied the locational criteria found in the Operative Provisions of the FLUE, which describe the factors to be used in determining appropriate locations for primary use plan categories (such as NC) in plan amendment requests. Those factors include street classification, public facilities and services, land use compatibility, development and redevelopment potential, structural orientation and other site design factors, ownership patterns, and environmental impacts. The analysis included an evaluation by staff of the impact of development based upon the most intensive uses permitted on NC property. Besides the locational criteria, the FLUE contains a number of policies directed at combating the expansion of strip commercial uses that have historically developed along the City's arterial and collector roadways, including Atlantic Boulevard. These are found in FLUE Policies 3.2.2, 3.2.5, 3.2.7, 3.2.8, and 3.2.16. In reviewing the application, the staff considered these policies and concluded that the amendment would be consistent with those provisions. Objections by Petitioners As noted earlier, Petitioners generally contend that the amendment is not supported by adequate data and analyses. They further contend that the amendment is inconsistent with standards governing the location and extent of commercial uses, the current designation of Bartram Road as a local road, and the protection of established residential neighborhoods. While the various papers filed by Petitioners did not identify the specific provisions of the Plan allegedly being violated, they were disclosed through their expert at the final hearing. Petitioners first contend that the City's data and analyses were predicated on the uses and restrictions contained in the PUD rezoning proposal, and not on alternative development scenarios that are possible under the NC land use designation. They also contend that the City failed to develop data and analyses regarding the impact on FLUE Objective 3.1 or FLUE Policies 1.1.19 and 3.1.7. The latter FLUE policy and the cited objective pertain to affordable housing, an issue not timely raised by Petitioners, while the remaining policy requires that FLUM amendments be based on the amount of land required to accommodate anticipated growth and the projected population of the area. The evidence shows that, prior to the adoption of the amendment, the City reviewed appropriate data from a number of different sources, and it evaluated the plan amendment based upon the most intensive uses that could be permitted under the NC land use designation. In every instance where Petitioners' expert testified that there was insufficient data and analyses, the testimony and exhibits credibly countered that testimony. Therefore, it is found that the plan amendment is supported by adequate and acceptable data, and that the data were collected and applied in a professionally acceptable manner. Petitioners' main contention regarding consistency is that the amendment conflicts with FLUE Policies 1.1.8, 3.2.1, and 3.2.5 in several respects. The first policy requires in relevant part: that all new non-residential projects [including commercial projects on NC lands] be developed in either nodal areas, in appropriate commercial infill areas, or as part of mixed or multi-use developments such as Planned Unit Developments (PUDs), . . . Policy 3.2.1 requires that the City 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. Finally, Policy 3.2.5 provides that 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. Petitioners first contend that Bartram's property does not lie within a "node," as that term is defined in the Definitions portion of the FLUE, and that by siting the NC land outside of a nodal area, the amendment is encouraging strip development in contravention of all three policies. They also contend that the amendment conflicts with Policy 3.2.5 because the Bartram property is not located at the corner of an arterial or collector road. Finally, they assert that the amendment is at odds with Policy 1.1.8 because the Bartram parcel is not an "appropriate commercial infill location." In resolving these contentions, it is first necessary to determine whether Bartram Road is a collector or a local street. By virtue of its high traffic volume (an Average Daily Traffic count of more than 1,600), the road actually functions as a collector road, that is, it collects traffic from the local roadway network in the neighborhood, two elementary schools, and a church campus (all south of Atlantic Boulevard) and distributes that traffic to both Atlantic and University Boulevards on each end, both of which intersections are signalized. Indeed, one of Petitioners' witnesses described Bartram Road as a heavily-used, cut-through street for persons traveling between Atlantic and University Boulevards. When the amendment was adopted, however, and even as late as the final hearing in January 2004, the road was still classified on the City's Map as a local road. For purposes of making a land use change, the actual classification on the City's Map should be used, rather than basing the decision on a future change on the Map that may or may not occur. Therefore, the property does not lie at the intersection of a collector or arterial roadway. A "node" is defined in the Definitions portion of the FLUE (page 74, Respondent's Exhibit 13) as follows: A focal point within the context of a larger, contiguous area surrounding it. It is an area of concentrated activity that attracts people from outside its boundaries for purposes of interaction within that area. The developed or developable land areas at the confluence of collector or higher classified roadways, which are suitable for medium to high densities and intensities of use for either single, multiple or mixed use developments. Petitioners contend that a fair reading of the definition is that a node (or focal point of concentrated activity) exists only at the intersection of University and Atlantic Boulevards, and does not extend outward to include the vacant Bartram site. In other words, Petitioners contend that the node is limited to the individual parcels at the intersection itself. On the other hand, the City and Intervenors take the position that a commercial node extends from its center (the intersection) outward in a lineal direction along a roadway until it ends at a natural physical boundary; if no physical boundary exists, then the node extends only to the end of the existing development along the roadway. Using this rule of thumb, they argue that the node begins at the intersection of Atlantic and University Boulevards and extends westward, presumably on both sides of the road,7 in a lineal direction along Atlantic Boulevard until it ends at a natural physical boundary, the Little Pottsburg Creek, approximately six-tenths of a mile away. The purpose of a node is, of course, to concentrate commercial uses near an intersection and reduce the potential for strip development along arterial roads, such as Atlantic Boulevard (which now has strip development extending eastward from the intersection for more than a mile to the Regency Square Shopping Mall). All parties agree that the existing development along Atlantic Boulevard west of the intersection up to the Bartram site is strip or ribbon development, as defined in the Plan, that is, development which "is generally characterized by one or two story commercial/office uses that are located immediately adjacent to one another, or in close proximity, extending out in a development pattern, typically along arterial roadways and usually each individual structure has one or more driveway accesses to an arterial." (Respondent's Exhibit 13, page 76.) The more persuasive evidence supports a finding that the node, that is, the area of concentrated commercial activity or the developed or developable lands at the confluence of University and Atlantic Boulevards, logically extends from the intersection westward in a lineal fashion along the southern side of Atlantic Boulevard until the end of the existing development, that is, the Publix shopping center, where virtually all commercial uses on both sides of the roadway end. (On the northern side of the road, the node would terminate just east of the Villa Apartments, where the CGC uses end). This collection of parcels (up to the eastern side of the Bartram site) includes all of the "developed or developable land areas at the confluence of collector or higher classified roadways, which are suitable for medium to high densities and intensities of use for either single, multiple, or mixed use developments." (If the contrary evidence was accepted, that is, the node extends to the Little Pottsburg Creek, the City could arguably change the land use on the property west of the church to a more intensive commercial use, and in doing so encourage more strip development.) Therefore, the Bartram property is not located within a nodal area and is not a developable land area suitable for "medium to high densities and intensities" of use. By changing its classification to NC and encouraging further strip development beyond the node, the amendment conflicts with Policies 1.1.8, 3.2.1, and 3.2.5. "Commercial infill" is defined in the FLUE as "[c]ommercial development of the same type and scale as adjacent commercial uses that is sited between those uses in existing strip commercial areas." (Respondent's Exhibit 13, page 68.) To qualify as commercial infill under this definition, the adjacent commercial uses must be "of the same type and scale" as those being sited on the vacant property. In the staff report, the City describes the property as "a true infill site," since the land on both sides of the parcel is developed, and the Bartram property is now vacant. However, while the Bartram property has a similar type and scale of development on its eastern side (an older Publix grocery store with 4 connected small retail shops), the property on its western side is a church campus and therefore a completely dissimilar use. (In addition, the property on its southern side is single-family residential). Because the surrounding uses are not of the same type and scale as the proposed infill, the change in land use is not an appropriate commercial infill area. Therefore, the amendment conflicts with Policy 1.1.8, which requires that "all non-residential projects be developed in either nodal areas, [or] in appropriate commercial infill areas." In their Amended Proposed Recommended Order, the City and Intervenors contend that the development nonetheless qualifies as "urban infill," which is defined in part at pages 77-78 of the FLUE as "[t]he development of vacant parcels in otherwise built-up areas where public facilities . . . are already in place." While this catch-all definition would appear to authorize the type of infill being proposed by Bartram (as well as virtually any other type of infill since the Bartram site is a vacant parcel in an otherwise built-up area), other FLUE provisions refer to commercial infill and nodal areas as the primary considerations for siting NC property. Finally, the City and Intervenors suggest that the plan amendment provides an appropriate transition from the busy intersection uses to residential neighborhoods, that is, from intense commercial uses to the east and residential uses to the south and west. The change, if approved, will result in two fairly large grocery stores, one in a shopping center configuration, and both with attendant retail stores, sitting side by side, with a church campus immediately to the west, existing residential uses to the south, and primarily residential uses directly to the north. This pattern of development is at odds with Policy 1.1.7, which requires a "[g]radual transition of densities and intensities between land uses in conformance with the [FLUE]." The other contentions of Petitioners have been considered and found to be unpersuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment adopted by the City of Jacksonville in Ordinance No. 2003-1070-E is not in compliance. DONE AND ENTERED this 5th day of March, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2004.
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
Findings Of Fact Based upon all of the pleadings and evidence, including the stipulation by counsel, the following findings of fact are determined: Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan, which is the subject of the dispute. Petitioners, Henry and Betty Prominski, are residents of Marion County and own a 16.5 acre tract of land on the southeast bank of Lake Weir in the southeastern portion of the County. The property is more commonly known as Orangewood Shores Subdivision. Until April 1994, the land was classified in the urban expansion category, which allows up to four residential units per acre. The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County eventually adopted certain remedial amendments on April 7, 1994, one of which changed the land use designation on petitioners' property from urban expansion to urban reserve. Under the new classification, only one residential unit per ten acres is allowed. A cumulative notice of intent to find the plan and remedial amendments in compliance was issued by the DCA on May 30, 1994. During the foregoing process, petitioners timely submitted oral or written objections to the County concerning the plan amendment, and thus they are affected persons within the meaning of the law. On September 14, 1994, the County, through its Staff Vesting Committee, issued Vesting Order No. 94-14, which granted petitioners' application for vesting determination on Orangewood Shores Subdivision. Among other things, the order determined that "the applicant has vested rights to complete the development (known as Orangewood Shores Subdivision) without aggregation of lots providing the applicant continues development activity in good faith." In this regard, petitioners have represented that they intend to "continue development activity in good faith," and they do not intend to vacate their plat. They also recognize that their land is vested from the plan amendment. Despite the lack of any viable issues regarding the development of their property, for the sake of "principle" only, they still wish to contest the de facto reclassification of their property. The foregoing language in the Vesting Order means that petitioners have vested rights to complete the development of their land notwithstanding the change of land use designation from urban expansion to urban reserve. The parties also agree that the effect of the Vesting Order is to vest the property from the comprehensive plan and the restrictions of the urban reserve area. Therefore, within the narrow context of the petition, the thrust of which is that the plan amendment prevents the subdivision's development, the issues raised therein are no longer viable, and petitioners do not have a cognizable interest in the outcome of this proceeding. The controversy is accordingly deemed to be moot.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the petition in this case on the ground the issues raised therein are moot. DONE AND ENTERED this 21st day of June, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1996. COPIES FURNISHED: Henry J. Prominski, Esquire Post Office Box 540 Weirsdale, Florida 32195-0540 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
