The Issue Miami-Dade County's Krome Avenue is a two-lane, undivided highway. In October 2002, the Board of County Commissioners for Miami-Dade County (the Commission) passed Ordinance No. 02-198. The ordinance adopted an amendment composed of several parts to the County's Comprehensive Development Master Plan (CDMP). Among the parts of the amendment were changes and additions to the CDMP initiated by an application ("Application No. 16") that relate to Krome Avenue (the "Plan Amendment.")1 Quite detailed, the Plan Amendment, in essence, makes changes that re-designate a substantial segment of Krome Avenue from 2 lanes to 4 lanes. The Plan Amendment's additions add all of Krome Avenue as a Major Route among the CDMP's designated evacuation routes in the year 2015, create new policies related to approval of use of land in the vicinity of Krome Avenue designated as a four-lane roadway and create a new policy related to planned capacity improvement to the roadway, including widening to four lanes. The issue in this growth management case is whether the Plan Amendment is "in compliance" as defined in the Local Government Comprehensive Planning and Land Development Regulation Act. Preliminary Statement Under cover of a letter dated January 17, 2003, the Department of Community Affairs (the "Department" or "DCA") forwarded to the Division of Administrative Hearings (DOAH) a petition that requested a formal administrative hearing. The petition was "forwarded [to DOAH] for assignment of an Administrative Law Judge pursuant to Section 163.3184(9), Florida Statutes." The petition was filed by the Sierra Club and John S. Wade, Jr., against the Department and Miami-Dade County (County) after the Department had issued a notice of intent to find the Plan Amendment transmitted by the County "in compliance" with the Local Government Comprehensive Planning and Land Development Regulation Act (the "Act" or the "Growth Management Act") contained in Part II of Chapter 163, Florida Statutes. The petition alleges that the Plan Amendment is "not in compliance as defined in section 163.3184(1), Fla. Stat., because it is inconsistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, the state comprehensive plan, with appropriate strategic regional policy plan, and with Chapter 9J-5, FAC." Petition for Formal Administrative Hearing, p. 4, paragraph 16. For relief, the petition requests, inter alia, that the administrative law judge enter a recommended order finding that the Plan Amendment is not in compliance. Upon receipt of the petition, DOAH assigned it Case No. 03-0150GM. Charles A. Stampelos was designated as the Administrative Law Judge to conduct the proceedings. A Notice of Hearing was issued that set the case for final hearing in March and April 2003. In February, the case was continued until September 2003 and in July 2003, the case was re-assigned to the undersigned. Prior to final hearing, two petitions to intervene were filed: the first, by Monroe County in support of Petitioners2; the second, in support by the City of Homestead in support of DCA and Miami-Dade County.3 Both were granted subject to proof of standing. Prior to hearing, a number of unopposed motions for continuances were granted. In addition, three motions were filed by the County: one for summary final order, a second to relinquish jurisdiction and issue a recommended order and the third a motion in limine. The three motions were denied. The case proceeded to final hearing in September 2005 in Miami, Florida. The evidentiary portion of the final hearing opened with the introduction and admission of most of the joint exhibits admitted over the course of the hearing. All in all, 60 joint exhibits were offered and admitted. They are marked as Joint Exhibit Nos. 1-17, 19-27, 29-31, 34-44, 46-49, 51-57, and 59-67. Petitioners commenced the presentation of their case-in- chief first. They presented the testimony of seven witnesses: Dickson Eazala, Comprehensive Planner with Miami-Dade County; Kay Bismark, an expert in the Redland area real estate market; John S. Wade, Jr., Petitioner; Rodrick Jude, Chair of the Sierra Club's Miami Group Executive Committee; Thomas Van Lent, an expert in the field of southern Everglades hydrology and restoration; Charles Pattison, Executive Director and Planner for One Thousand Friends of Florida and an expert in comprehensive planning and compliance under the Growth Management Act; and, Diane O'Quinn, Director of Miami-Dade County's Department of Planning and Zoning, an expert in the field of comprehensive planning. Petitioners offered 13 exhibits, marked as Petitioners' Exhibit Nos. 9-13, 17-19, 21-23, and 29-30. Petitioners' Nos. 18 and 23 were rejected and then proffered by petitioners. The rest of the exhibits offered by Petitioners were admitted. Intervenor Monroe County presented the testimony of Timothy McGarry, Director of Growth Management in Monroe County and an expert in land planning. Monroe County offered two exhibits, marked as Monroe County Exhibit Nos. 1 and 2; both were admitted. Miami-Dade County presented the testimony of Thomas Pelham, an expert in the fields of comprehensive planning and review of plans and plan amendments for compliance with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 9J-5; Alice Bravo, District Planning and Environmental Management Engineer for the Florida Department of Transportation (FDOT); and Jonathan Lord, Emergency Management Coordinator with Miami- Dade County's Office of Emergency Management. Miami-Dade County offered two exhibits, marked as Miami-Dade County Exhibit Nos. 1 and 2; both were admitted. The Department of Community Affairs presented the testimony of Paul Darst, Senior Planner in the Department, an expert in the fields of comprehensive planning and the review of comprehensive plan amendments with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 97-5. The Department offered one exhibit, marked as DCA Exhibit No. 1. It was admitted. After a number of motions granted to extend the time for the filing of proposed orders, the parties filed timely proposed recommended orders on February 3, 2006. This Recommended Order follows.
Findings Of Fact Krome Avenue Less than a mile south of downtown Florida City, at a "fork in the road" for a driver headed north, Krome Avenue branches off of US 1 (South Dixie Highway). It heads in a northwesterly direction for a short distance, turns due north through Florida City and the City of Homestead and then bolts northward across a considerable stretch of western Miami-Dade County. With only a slight directional variation at an intersection with Kendall Drive, the road continues its due north run until its last several miles when it turns northeasterly before it merges with US 27 (Okeechobee Road) just shy of the Broward County line. Over its 37-mile span, there are a number of significant features of the two-lane undivided roadway. Known also as 177th Avenue, it serves as the main street for the City of Homestead, a municipality hard-hit by Hurricane Andrew in 1992. It treads along the edge of the Everglades Protection Area. In the south, Krome Avenue's locus varies in distances relatively close to Everglades National Park. In the case of Water Conservation Area 3 (WCA-3) to the north, the roadway abuts the Everglades sector's politically-drawn east border. For most of its length north of US 41 or the Tamiami Trail it fragments wetlands designated as "Environmental Protection" with WCA-3 to the west and an extension of the historical Everglades to the east. It also traverses the Redland, an expansive tract of prime agricultural land packed between suburbs and the fabled River of Grass. Krome Avenue's cross of the Redland renders it a route essential to agricultural interests in the area. The roadway is used to transport harvested row crops and as a means to get produce from fruit and vegetable groves to market in the face of competitive pressure from Mexico and Central America, competition generated by the North American Free Trade Agreement (NAFTA) since its adoption during the Clinton Administration. Lately, Krome Avenue has been a shipping lane for bush, flower and tree products from recently-arisen container nurseries dedicated to ornamental horticulture. The burgeoning nursery business supports the landscaping needs of the real estate and building industries in a county that has experienced explosive residential and commercial growth recently due in substantial part to stimulation from a financing environment of low interest rates that has persisted for more than half a decade. Due to Krome Avenue's proximity to the Everglades, any proposed and adopted amendments to the CDMP or local zoning action that might promote improvement of the roadway draws attention of some involved in the Comprehensive Everglades Restoration Project (the "Project" or "CERP"). The Project, called for by Congress to be completed by the U.S. Army Corps of Engineers in a joint effort with the state and the South Florida Water Management District (SFWMD) involves the expenditure of prodigious governmental funds and utilization of ground-breaking science. Of considerable interest to many communities, residential, commercial, environmental, agricultural, and scientific, to name some of the more obvious, CERP is the subject of government involvement at all levels. Of concern is anticipation that improvement to Krome Avenue supported by CDMP amendments threatens to contribute to rises in the value of property that is being sought or may be sought for governmental acquisition to further CERP at a time when there are various forces in play to reduce funding for the Project. A Significant Roadway Krome Avenue's is Miami-Dade County's westernmost roadway of statewide significance. The CDMP recognizes this status: it classifies the roadway as a state principal arterial roadway. The state likewise recognizes Krome Avenue's significance. FDOT has designated Krome Avenue a corridor in the Florida Intrastate Highway System (FIHS)4 developed to address requirements for a National Highway System imposed by the Congress' Intermodal Surface Transportation and Efficiency Act (ISTEA) of 1991. The Plan Amendment makes it is a hurricane evacuation route for residents and the transient population of south Miami-Dade County and provides an alternative evacuation route to Monroe County and the Florida Keys, an area sensitive to effects generated by residential development in south Florida. Despite its import to local, state and national transportation systems and the recognition of that import in the last several decades, the roadway has remained an undivided rural two-lane highway. Its configuration and the transportation demands that have increased in recent years have led to concerns about safety on much of Krome Avenue. Krome Avenue Safety The 33-mile segment of the corridor between Southwest 296th Street and US 27 exhibits a vehicular crash rate that is consistently higher than the statewide average for highways with the same characteristics. A significant portion of those crashes have resulted in fatalities or severe injuries. Between 1995 and 1999, there were 966 total vehicular crashes, of which 106 resulted in severe injuries and 16 resulted in fatalities. The number of crashes resulting in fatalities increased significantly after 1999. Between January 2000 and July 2002, there were an additional 26 crashes resulting in fatalities. Between 1995 and 2002, a total of 59 people died on Krome Avenue in the 42 crashes involving fatalities. Fatal crashes occurred in four segments of Krome Avenue as indicated here: Road Segment Crashes Deaths Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 16 26 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 3 4 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 16 21 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 7 8 Of the 42 fatal crashes between 1995 and 2002, 15 were the result of head-on collisions. Another 15 were the result of centerline crossovers, where a vehicle traveling in one direction crossed over the roadway centerline and struck a vehicle traveling in the opposite direction. Crossover collisions differ from head-on collisions in that the point of impact is usually at an angle. Head-on collisions and crossover collisions on Krome Avenue are due at least in part to its configuration as a two- lane, undivided road. Because crashes occurred throughout the 33-mile corridor and not just at intersections, independent transportation engineering consultants retained by FDOT to analyze conditions on Krome Avenue recommended that a safety improvement plan should be considered for the entire corridor. (See paragraphs 18. to 28., below.) Daily traffic volumes on Krome Avenue increased steadily between 1995 and 2001, growing at a rate of over 10 percent per year. In 2001, weekday traffic volumes were approximately 14,000 to 15,000 vehicles between S.W. 8th Street and S.W. 296th Street and approximately 9,000 vehicles between US 27 and Southwest 8th Street, as illustrated in the following table: Road Segment Avg. Daily Traffic 2001 Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 9,000 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 14,800 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 14,500 Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) 14,600 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 14,100 Long-range traffic projections indicate that by the year 2020, weekday traffic volumes will be between 18,000 and 21,000 vehicles south of S.W. 8th Street, and approximately 12,000 vehicles to the north. No projection suggests that traffic will decrease. Indeed, traffic models for Miami-Dade County have systematically underestimated actual traffic volume. Many intersections on Krome Avenue operate with unacceptable levels of delay, which affect drivers’ overall travel times. These conditions are reasonably expected to degrade over the coming decades. The increased traffic volume and attendant diminution in Level of Service mean that a large percentage of motorists on Krome Avenue are not able to travel at desired speeds. Slow- moving vehicles impede drivers’ forward progress, but because Krome Avenue is a two-lane road with a high volume of traffic traveling in both directions, drivers are not able to pass those vehicles. The result is an increase in driver frustration. The number of head-on crashes on Krome Avenue indicates that many drivers, as they get frustrated, are more willing to attempt risky passing maneuvers. Because passing generally involves higher speeds, crashes that result from risky passing maneuvers are more likely to result in fatalities or severe injuries. The problems associated with driver frustration are further exacerbated by the increasing volume of large trucks on Krome Avenue. The number of trucks as a percentage of overall traffic varies between 26 percent and 32 percent of daily traffic. Trucks contribute to delays at intersections and, thus, to overall delays in travel times. Trucks have difficulty turning off of Krome Avenue, thereby encouraging vehicles to attempt to pass them; those vehicles in turn pose a hazard to oncoming traffic, because they are obscured by the truck. Finally, the high percentage of trucks on the road contributes to an increase in the severity of crashes involving trucks. In general, because of the difference in size and speed between trucks and automobiles, the two types of vehicles should be separated as much as possible especially by a median separating lanes of traffic proceeding in opposing directions. The 1999 Krome Avenue Action Plan In 1999, FDOT produced the Krome Avenue Action Plan (the "Action Plan.") The Action Plan followed by nine years the Florida Legislature's adoption of the FIHS of which Krome Avenue is a part. FIHS standards require that FIHS roadways be designated as controlled access facilities and that they be configured with a minimum of four lanes divided by a restrictive median (the "FIHS Directive"). Attempts to bring Krome Avenue into compliance with the FIHS Directive met with difficulties described in the Executive Summary of the Action Plan: To begin the long-range planning process required to achieve this directive, the Florida Department of Transportation (FDOT) programmed various phases of improvement for Krome Avenue in their tentative work program. This work program was adopted by the Metropolitan Planning Organization (MPO) as the Miami-Dade County Transportation Improvement Plan (TIP) and provides funding for a more detailed study of the corridor. This action set off a string of controversial meetings and hearings regarding the consistency of the TIP, the Miami-Dade County Comprehensive Development Master Plan (CDMP), and local government comprehensive plans. In response to the controversy, the MPO modified their TIP to eliminate consideration of Krome Avenue as a four (4) lane divided roadway with landscaped medians throughout the facility. In February 1997, FDOT began analyzing the Krome Avenue corridor and developing the Krome Avenue Action Plan. During the public involvement process, several alternatives were developed to preserve Krome Avenue as a two (2) lane roadway. The results of sixteen (16) months of public involvement activities and engineering analysis identified the need to preserve the rural character of the corridor while providing safety and operational enhancements to the existing roadway. Joint Exhibit 19, pgs. i-ii, (emphasis supplied). In light of difficulty in reaching "consensus and public acceptance for any improvement alternative," id., p. ii, the Action Plan was conducted "as a precursor to the requisite Project Development and Environment (PD&E) Study to avoid the expenditure of the large sums of public funds in a study effort, with no resulting project." Id. The Action Plan required that Krome Avenue be maintained as a two-lane road, and it recommended improvements, such as adding additional lanes and traffic signals at intersections; implementing an access management plan to limit the number of driveways and cross-street connections to Krome Avenue and to restrict turns off of the roadway; enhancing road shoulders; providing passing zones; adding pedestrian and bicycle facilities; improving pavement markings and signs; and widening the areas from the edge of the roadway that are free of obstructions, known as clear zones, to prevent crashes that result from drivers running off of the road. The Action Plan was premised on traffic volume projections for the year 2010 that were exceeded or were nearly exceeded by the traffic actually observed in 2001, nine years before the final projection. In addition, the amount of traffic observed in 2001 was close to the amount of traffic projected for 2020: Road Segment 2010 KAAP Forecast 2020 KAAP Forecast 2001 Avg. Daily Traffic Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 9,349 10,475 9,000 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 14,713 16,486 14,800 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 14,713 16,486 14,500 Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) 12,730- 16,351 13,486- 18321 14,600 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 11,921- 16,917 12,629- 17,921 14,100 Furthermore, after the Action Plan, that is, after 1999, the number of fatal crashes increased significantly. The increase was noted in an "Existing Level of Service Study" prepared for District VI of FDOT by Kittelson & Associates, Inc., (the "Kittelson Report"). The Kittelson Reports In 2002, FDOT retained Kittelson & Associates (“Kittelson”), independent transportation planning and engineering consultants, to report on Krome Avenue. Kittelson produced two reports in August and October of that year (the "First Kittleson Report" and the "Second Kittleson Report"). The First Kittleson Report is entitled “SR 997/Krome Avenue Existing Level of Service Study” and the Second Kittleson Report is entitled “SR 997/Krome Avenue Future Conditions Analysis and Mitigation Measures.” See Joint Exhibits 15 and 49. The 1999 Action Plan, prepared in the wake of public controversy and concerns regarding consistency between the CDMP and the FIHS Directive, directly addressed those concerns and reached a compromise in the conflict. As stated in the last paragraph of its Executive Summary: Although the improvements in the Krome Avenue Action Plan do not result in a facility that meets all FHS standards, the Action Plan represents the best compromise among a wide range of diverse interests including hundreds of interested residents, agency staff, and elected officials. Joint Exhibit 19 (emphasis supplied). Unlike the Action Plan, however, Kittelson's focus, as stated in the opening sentence of its Executive Summary in the First Kittleson Report, was squarely on level of service and safety issues: "The purpose of this study is to perform a detailed Level of Service and safety analysis for existing conditions along the SR 997/Krome Avenue (177th Avenue) corridor." Joint Exhibit 15, pgs. II and 2. In the Second Kittleson Report, Kittleson summarizes its finding with regard to the increase in the number and severity of crashes on Krome Avenue: . . . [I]t is clear that traffic volume growth and increasing levels of congestion have contributed to driver frustration and attempts to make risky passing maneuvers on Krome Avenue. This has probably led to an increase in the number and severity of crashes in the corridor. Joint Exhibit 49, p. E-V. The Second Kittleson Report recognized that short of widening to a divided, four-lane roadway, there are a number of congestion and safety measures that could be considered to enhance mobility and safety, some of which were recommended by the 1999 Action Plan and some that were in addition to that plan. But the Second Kittleson Report argued for consideration of widening Krome Avenue to a four-lane divided roadway: . . . [T]here are four factors that, in combination, argue for the consideration of widening Krome Avenue to a four lane divided section: The fact that Krome Avenue is on the Florida Intrastate Highway System and the requirement that it be designated as controlled-access facility with a cross-section that provides for at least four lanes with a restrictive median. The likelihood that the high percentage of trucks that use the entire length of the corridor Id. contribute to an increase in crash severity when trucks are involved in crashes. The increasing levels of roadway and intersection congestion and the difficulty in mitigating these levels of congestion short of providing for additional north-south through movement capacity. The crash experience on Krome Avenue exceeds the statewide average for this type of roadway. The high number of crashes and the increase in crash severity (as demonstrated by an increase in the number of fatal crashes largely due to head-on and angle collisions) that likely would be mitigated by physically separating the directions of travel with a median. In a section of the Second Kittelson Report under the heading of "Availability of Passing" Kittelson details the problems with passing on a two-lane undivided Krome Avenue, the contribution these problems make to head-on collisions and the high speeds at which passing maneuvers occur. The report concludes that several measures should be considered to counter safety issues associated with passing maneuvers, among them, the addition of passing lanes and a median separated two-lane section. The first countermeasure recommended, however, is the creation of a four-lane section: A four-lane section eliminates the need for drivers to judge the adequacy of gaps in opposing traffic and use the opposing lane to perform the passing maneuver. The length and placement of a four-lane section can vary (for example, a four-lane section can be located between intersections or on a specific stretch of roadway). It is noted that in areas where access to roadside properties exists or is planned, a four-lane section should be median separated and that left-turn lanes need to be provided to minimize crossover crashes and rear-end crashes. A properly designed four-lane section can be expected to nearly eliminate head-on crashes (a crash type that often results in severe injuries or fatalities) and reduce the total number of roadway crashes associated with passing maneuvers. Joint Exhibit 49 (emphasis supplied). The Second Kittleson Report notes that "[w]hen considering potential countermeasures, it is important to note that one treatment does not have to be applied to the entire corridor." Joint Exhibit 49, p. 36. The reason is that there are a number of issues including safety that should be examined. The Second Kittelson Report reaches the conclusion, therefore, that "[a]n alternative analysis that considers issues such as available right-of-way, environmental impacts, safety benefits, operational benefits, and community concerns should be completed in order to decide what the preferred treatment should be." Id. In light of four factors stated above and specifically, the solution to head-on collisions offered by upgrading a two-lane undivided highway to a four-lane divided highway, Kittelson in the Second Kittleson Report recommends, "that a Project Development and Environment process be conducted to consider the range of solutions for improving the operational and safety characteristics of Krome Avenue." Joint Exhibit 49, p. E-V. The Kittleson reports, therefore, went a step beyond the 1999 Action Plan. They call for improvement of some or all of Krome Avenue to a four-lane section with a restrictive median as one of the solutions, among a range of solutions, to safety on Krome Avenue. Before such an improvement can take place, however, FDOT must conduct a Project Development and Environment Study (a "PD&E Study.") FDOT's Position FDOT is solely responsible for funding and building improvements to Krome Avenue. FDOT has neither a rule nor an un-codified policy that it will not consider funding or building an improvement to a road under its jurisdiction when improvement would be inconsistent with an applicable local comprehensive plan. Nevertheless, as made clear in the 1999 Krome Avenue Action Plan, FDOT is plainly sensitive to undertaking expensive studies necessary to roadway improvements that are inconsistent with local comprehensive plans. A PD&E Study is resource-intensive in time, money and FDOT commitment. Inconsistency with a local comprehensive plan is not a prescription for action on roadway improvement; rather it tends to produce a situation laden with complication as FDOT's District Engineer testified at hearing: (Tr. 768) Q. . . .[I]f this plan amendment which authorizes the widening, on the comprehensive plan, to four lanes, if this amendment is rejected, what happens next? A. . . . [W]e would have to stop and consider the circumstances, the situation, a lot of different factors before we decided whether or not to proceed with the ... study. FDOT has long been aware of safety problems on Krome Avenue. In the wake of the Kittelson Reports commissioned after a rapid rise in life-threatening traffic accidents on Krome suspected to be due, at least in part, to its configuration and a strong recommendation that widening and median placement be considered among a range of improvements, a PD&E Study was not commenced. As of the time of hearing a PD&E Study had still not been commenced. Evacuation Route In considering the data related to safety on Krome Avenue, including the Kittelson Report, the Commission considered Krome Avenue's status as an evacuation route. Since the early 1990s, Miami-Dade County has experienced significant population growth along its southern and western fringes, between the Broward County line and the Homestead/Florida City area. This growth is reasonably expected to continue. Because Krome Avenue is one of only three continuous north-south routes in Miami-Dade County, it is important to persons evacuating the City of Homestead and other surrounding areas in southern and western Miami-Dade County and Monroe County. Krome Avenue is an evacuation route not only for hurricanes but also for “all hazards,” such as a meltdown at the Turkey Point Nuclear Power Plan. Nonetheless, it is not designated by Monroe County as part of the official evacuation route. Krome Avenue had been used to evacuate southern Miami- Dade County during Hurricane Andrew. It had also been used to transport relief personnel, vehicles, and supplies in the aftermath of that storm. Given the growth of Miami-Dade County’s population, the other north-south routes, the Florida Turnpike and US 1, would be extremely congested if all of southern and western Miami-Dade County evacuated—much more so if Monroe County evacuated at the same time. Moreover, it is not only people who live in mandatory evacuation zones who evacuate during an emergency: an increasing number of people evacuate voluntarily. Additional capacity on Krome Avenue is necessary to accommodate both mandatory and voluntary evacuees. Miami-Dade County’s Comprehensive Emergency Management Plan, prepared by the Miami-Dade Office of Emergency Management (“OEM”) in October 2000 and adopted by the County Commission, currently designates Krome Avenue as a primary north-south evacuation route for the Florida Keys and south Miami-Dade, in the event of a hurricane or an emergency related to the Turkey Point Nuclear Power Plant. Designated evacuation routes are roads that OEM encourages people to use in an emergency, and they are selected based on recognizability, carrying capacity, and where they end. To maintain consistency between the Emergency Management Plan and the CDMP, the Plan Amendment amends the map of “Designated Evacuation Routes-2015” in the Transportation Element to add Krome Avenue as a “Major Route.” Monroe County’s Director of Growth Management, Timothy McGarry, opined that Krome Avenue was not necessary to accommodate evacuation from Monroe County, because the Florida Turnpike provided adequate capacity. But McGarry based his opinion on the amount of Monroe County’s population that has historically evacuated, which is 50 percent. McGarry would not say that the Florida Turnpike would provide adequate capacity if 100 percent of Monroe County’s population were to evacuate. Moreover, McGarry conceded that, in formulating his opinion, he had not considered what would happen if both Monroe County and southern Miami-Dade County evacuated at the same time. A four-lane Krome Avenue would increase the capacity of Miami-Dade County’s Primary Evacuation Route System and facilitate relief efforts to south Miami-Dade and Monroe County. Moreover, if residents of both Miami-Dade County and Monroe County are evacuated, the additional capacity would allow OEM to direct Miami-Dade residents to Krome Avenue, thus opening the Turnpike and US 1, which provide the only exit routes from the Florida Keys, for residents and tourists evacuating Monroe County. The CDMP and the UDB Miami-Dade County is one of the only counties in the State of Florida to have an “urban development boundary" (UDB.) In the Land Use Element of the Adopted Components of the Year 2000 and 2010 CDMP dated December, 1988, the UDB is described: The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2000 from areas where it should not occur. * * * The CDMP seeks to facilitate the necessary service improvements within the UDB to accommodate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element. Joint Exhibit 56-A, pgs. I-35 and I-36. Thomas Pelham, Miami- Dade County's expert in comprehensive planning, explained the difference between a UDB and an Urban Services Area: The urban service area concept is the local government's designation of the areas in which it . . . will provide urban services. The urban growth boundary is a technique by which a line is drawn beyond which urban development will not be allowed. Tr. 662-3. With regard to the UDB, the parties stipulated, The CDMP currently contains policies to discourage urban sprawl and urban development in areas outside the Urban Development Boundary (the "UDB"), particularly areas designated Agriculture, Open Land, or Environmental Protection. These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas. Pre-hearing Stipulation, p. 14, para. 13. The UDB appears on the CDMP's Adopted 2005 and 2015 Land Use Plan map ("LUP map") as a broken line that on its northern end commences on the border with Broward County. It runs primarily north-to-south along the breadth of developed Miami-Dade County, within several miles of the Everglades and environmentally protected lands, and through the Redland to a point southwest of Florida City and Homestead where it turns sharply east for five to six miles and then heads in a primarily northeast direction around Homestead Regional Airport to meet the coast along Biscayne Bay near Black Point Park. Other counties have at most an “urban service area” or “urban service boundary,” which merely designates the areas in which the government will provide urban services. In contrast to the UDB, an urban service area does not prohibit urban development outside its boundary. A comprehensive plan with an urban services area typically provides only that the landowner, rather than the government, is responsible for providing urban services outside the urban services area. Miami-Dade County had the UDB before the Florida legislature adopted the laws requiring comprehensive plans, in 1985. The UDB thus predates the CDMP, which was adopted in 1988. Neither Chapter 163 nor Rule 9J-5 requires an urban development boundary. In providing a UDB in the CDMP, therefore, Miami-Dade County is making use of a technique to discourage urban sprawl that exceeds the requirements of Chapter 163 and Rule 9J-5. Miami-Dade County has rarely expanded the UDB in areas not designated as Urban Expansion Areas (“UEAs”). In the last 10 years, the UDB has only been expanded once. That amendment, for the Beacon Lakes project, approved an industrial use where rock mining and cement manufacturing had already taken place. All along its path, Krome Avenue is outside (or to the west of) the UDB. The CDMP does not specify any procedures for applications to move the UDB, beyond the requirements applicable to plan amendments generally. Instead, the procedures for moving the UDB are set forth in Section 2-116.1 of the Code of Miami-Dade County Florida (the “County Code”). That section requires an affirmative vote from two-thirds of the total membership of the County Commission. There are no restrictions on how frequently the County Code may be amended. Changes to the County Code may be accomplished by ordinance at any legislative meeting of the County Commission. The entire process can take as little as three months. Changes to the CDMP, by contrast, are subject to more rigorous procedures: applications may only be filed twice a year; they require review by the Regional Planning Council and DCA; they require two public hearings before the Planning Advisory Board; they require two public hearings before the County Commission; and the entire process takes one year. In its “Statement of Legislative Intent,” the CDMP provides: 3. The CDMP is intended to set general guidelines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations. * * * 6. The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities. Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. Pre-Hearing Stipulation, para. 14. The CDMP currently contains substantive policies to discourage urban sprawl and urban development in areas outside the UDB, particularly areas designated Agriculture, Open Land, or Environmental Protection. These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas. Land Use Objective 1 provides: The location and configuration of Miami-Dade County’s urban growth through the year 2015 shall emphasize concentration and intensification of development around centers of activity, development of well designated communities containing a variety of uses, housing types and public services, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl. Pre-Hearing Stipulation, para. 15. Land Use Element Policy 1P provides: Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities. Pre-Hearing Stipulation, para. 16. Land Use Element Policy 1Q provides: While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism related to the area’s agricultural and natural resource base including Everglades and Biscayne National Parks. Pre-Hearing Stipulation, para. 17. Land Use Element Policy 2B provides: Priority in the provision of services and facilities and the allocation of financial resource for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non-urban areas. Pre-Hearing Stipulation, para. 18. Land Use Element Policy 8C provides: Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to promote agriculture as a viable economic use of land in Miami-Dade County. Pre-Hearing Stipulation, para. 19. Land Use Element Policy 8F provides: Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Objective and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at or above adopted LOS Standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; Enhance or degrade environmental or historical resources, features or systems of County significance; and If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period of headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective 7, herein. Pre-Hearing Stipulation, para. 20. Land Use Element Policy 8G 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 the EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy 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. Pre-Hearing Stipulation, para. 21. Land Use Element Policy 8H provides: When considering land areas to add to the UDB, after demonstrating that a countywide need exists, The following areas shall not be considered: The Northwest Wellfield Protection Area located west of the Turnpike Extension between Okeechobee Road and NW 25 Street, and the West Wellfield Protection Area west of SW 157 Avenue between SW 8 Street and SW 42 Street; Water Conservation Areas, Biscayne Aquifer Recharge Areas, and Everglades Buffer Areas designated by the South Florida Water Management District; The Redland area south of Eureka Drive; and The following areas shall be avoided: Future Wetlands delineated in the Conservation and Land Use Element; Land designated Agriculture on the Land Use Plan map; Category 1 hurricane evacuation areas east of the Atlantic Coastal Ridge; and The following areas shall be given priority for inclusion, subject to conformance with Policy 8G and the foregoing provision of this policy: Land within Planning Analysis Tiers having the earliest projected supply depletion year; Land contiguous to the UDB; Locations within one mile of a planned urban center or extraordinary transit service; and Locations having projected surplus service capacity where necessary facilities and services can be readily extended. Pre-Hearing Stipulation, para. 22. Interpretation of the LUP Map: Policy of the Land Use Element provides: Urban Development Boundary (p. I-45) The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2005 from areas where it should not occur 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 . . . . [U]rban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted only if such roadways are shown on the LUP map and in the Transportation Element. . . . Concepts and Limitations of the Land Use Plan Map: Coordinated-Managed Growth (p. I- 59) [C]ritical in achieving the desired pattern of development is the adherence to the 2005 Urban Development Boundary (UDB) and 2015 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard, the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that the actions of one single- purpose agency does not foster development that could cause other agencies to subsequently respond in kind and provide facilities in unanticipated locations. Such uncoordinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives. Concepts and Limitations of the Land Use Plan Map: Ultimate Development Area (p. I- 64) The 2005 and 2015 Land Use Plan map identified the areas that will be urbanized within those time frames. As indicated throughout this Plan, these are the areas of the County where financial resources should be directed from the maintenance and construction of urban infrastructure and services. Growth of Dade County, however, is not projected to cease after the year 2015. Therefore, prudent long-term planning for infrastructure may need to anticipate locations for possible future extension. For example, it may be desirable to reserve rights-of-way in certain growth corridors as well as on section, half-section, and quarter-section lines, well in advance of need so that opportunities to eventually provide necessary roadways are not irrevocably lost. It is difficult to specify where and how much of Dade County’s total area may ultimately be converted to urban development. . . . It is reasonably safe to assume, however, that the areas least suitable for urban development today will remain least suitable. Theses areas include the remaining high-quality coastal and Everglades wetland areas in the County, and the Northwest Wellfield protection area. The areas more appropriate for, and more likely to experience sustained urban pressure are the heavily impacted, partially drained wetlands in the Biscayne-Snake Creek and Bird-Trail Canal Basins, the agricultural areas of southwestern and southeast Dade, and the impacted wetlands south of Homestead and Florida City. When the need for additional urban expansion is demonstrated after the year 2015, such expansion should be carefully managed to minimize the loss of agricultural land and to maximize the economic life of that valuable industry. Accordingly, urban expansion after the year 2015 in the South Dade area should be managed to progress westerly from the Metrozoo area to Krome Avenue north of Eureka Drive, and on the west side of the US 1 corridor southerly to Homestead only when the clear need is demonstrated. . . . Pre-Hearing Stipulation, para. 23 (emphasis supplied). Of particular import to this proceeding, Policy 4C of the Traffic Circulation Subelement requires avoidance of improvements which encourage development in certain areas. With regard to development in Agriculture and Open Land areas, transportation improvements which encourage development are to be avoided but avoidance is subject to an exception, "those improvements necessary for public safety and which serve the localized needs of these non-urbanized areas." Areas designated Environmental Protection, on the other hand, are to be "particularly avoided." Policy 4C of the Traffic Circulation Subelement provides: Dade County’s priority in the construction, maintenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan map. Second priority in transportation allocations shall support the staged development of the urbanizing portions of the County within the Urban Expansion Area. Transportation improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas. Areas designated Environmental Protection shall be particularly avoided. Pre-Hearing Stipulation, para. 24 (emphasis supplied). Policy 1A of the Water and Sewer Sub-element provides: The area within the Urban Development Boundary of the Land Use Plan map shall have the first priority in providing potable water supply, and sanitary sewage disposal, and for committing financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Land, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health, safety or welfare. Pre-Hearing Stipulation, para. 25. Policy 1H of the Water and Sewer Sub-element provides: New water supply or wastewater collection lines should not be extended to provide service to land within the areas designated Agriculture, Open Land or Environmental Protection on the Land Use Plan map. New water or wastewater lines to serve land within these areas should be approved or required only where the absence of the facility would result in an imminent threat to public health or safety. The use of on- site facilities should be given priority consideration. In all cases, facilities should be sized only to service the area where the imminent threat would exist, to avoid inducing additional urban development in the area. This policy will not preclude federal, State or local long-range planning or design of facilities to serve areas within the Urban Development Boundary (UDB) or Urban Expansion Area (UEA). Public health and safety determinations will be made in accordance with Chapter 24 of the Code of Miami-Dade County (Environmental Protection) and Section 2-103.20, et. seq., (Water Supply for Fire Suppression) Code of Miami-Dade County. Pre-Hearing Stipulation, para. 26. Policy 5A of the Capital Improvements Element provides: As a priority, previously approved development will be properly served prior to new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority for investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs. Pre-Hearing Stipulation, para. 27. The Plan Amendment The Plan Amendment consists of several components grouped as follows: a. changes in Plan designations in the Land Use Element on the LUP map and in the Traffic Circulation Subelement that increase the lanes on a segment of Krome Avenue from 2 lanes to 4 lanes (the "Lane Increase Changes"); b. changes in the Transportation Element's Traffic Circulation Subelement that add Krome Avenue as a Major Route in the Designated Evacuation Routes 2015 (the "Evacuation Route Change"); c. addition of new policies that require among other matters a super-majority of the County Commission for zoning action or amendment to the CDMP that would approve certain uses within one mile of Krome Avenue designated for improvement to four lanes (the "New Super-Majority Policies"); and d. addition of a new policy that requires adoption of a binding access control plan for the Krome Avenue corridor before capacity improvements to Krome Avenue outside the UDB (the "New Binding Access Control Plan Policy"). The parties stipulated to the following narrative description of the Plan Amendment: 31. As part of the October 2002 Plan Amendment, the County Commission approved Application 16. Application 16 made the following changes to the CDMP: Changed the Plan designations of Krome Avenue (SR 997/SW 177 Avenue), between US 27 and SW 296 Street, as follows: In the Land Use Element, on the Land Use Plan map change from Minor Roadway (2 lanes) to Major Roadway (3 or more lanes); and in the Transportation Element, Traffic Circulation Subelement, Figure 1, “Planned Year 2015 Roadway Network”: Change from 2 lanes to 4 lanes. In the Transportation Element, Traffic Circulation Subelement, added Krome Avenue between US 27 and US 1 to Figure 7, Designated Evacuation Routes 2015, as a Major Route. Added the following new Policy 3F to the Land Use Element: Any zoning action or amendment to the CDMP that would approve any use other than direct agricultural production and permitted residential uses of property, in an area designated as Agriculture, whether as a primary use or as an accessory or subordinate use to an agricultural use, or action that would liberalize standards or allowances governing such other uses on land that is a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. The term “direct agricultural production” includes crops, livestock, 15 nurseries, groves, packing houses, and barns but not uses such as houses of worship, schools, sale of produce and other items, and outdoor storage of vehicles. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 3G to the Land Use Element: Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than limestone quarrying, seasonal agriculture or permitted residential use in an area designated as Open Land on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 3H to the Land Use Element: Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than seasonal agricultural use in the Dade-Broward Levee Basin or permitted residential use in an area designated as Environmental Protection, on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 4E to the Traffic Circulation Subelement: Notwithstanding the designation of Krome Avenue as a Major Roadway on the CDMP Land Use Plan Map or as a four-lane roadway in the Traffic Circulation Subelement, no construction associated with the four- laning, or other capacity improvement, of Krome Avenue outside the Urban Development Boundary shall occur until FDOT has prepared, and the Board of County Commissioners has adopted, a detailed binding access control plan for the Krome Avenue corridor. This plan should emphasize access to properties fronting Krome Avenue primarily through alternative street locations. Pre-hearing Stipulation, para. 28. Land Uses Near Krome Avenue North of S.W. 56th Street, the bulk of land uses around Krome Avenue are Environmental Protection and Open Land with almost all of the adjacent land north of US 41 designated Environmental Protection. South of S.W. 56th Street the land is designated as Agriculture and Environmental Protection except for near Homestead and Florida City where the land use designations are Residential Communities (of mostly low density), Business and Office and some Industrial and Office. Krome Avenue currently provides the western boundary of an Urban Expansion Area (UEA) for the year 2015 between what would be an extension of S.W. 42nd Street and an extension of S.W. 112th Street. The CDMP directs that urban infrastructure and services be planned for eventual extension into the UEA, as far west as Krome Avenue, sometime between 2005 and 2015. In addition, the area two miles east of Krome Avenue, between S.W. 12th Street and S.W. 8th Street, is designated as UEA. What the Plan Amendment Does Not Do Of particular import to this proceeding, given the case presented by Petitioners, is what the Plan Amendment does not do. The Krome Avenue Amendment does not change any land uses. It does not alter the existing Conservation Element or any other CDMP policies that protect environmental resources. It does not add Krome Avenue to the Capital Improvements Element or provide funds for or authorize construction on Krome Avenue. Furthermore, any future attempt to change land use in the vicinity of Krome Avenue, if anything, will be more difficult because of the New Supermajority Land Use Policies contained in the Plan Amendment. The New Supermajority Policies work in tandem with the substantive policies to provide the standards for land use changes within one mile of Krome Avenue designated for improvement to four lanes. For example, existing Land Use Policy 8H states that the areas surrounding Krome Avenue, particularly areas west of the road, be avoided or not be considered if Miami-Dade County proposes expanding the UDB. Because the only procedural requirements for moving the UDB are currently contained in the County Code, which may be amended from time to time, adding the Supermajority Requirement to the CDMP with its more rigorous amendment procedures, tends to make it more difficult to change the planning and zoning designations on a property. The Lane Increase Changes There are serious safety problems that rise to the level of literally "life-or-death" on the segment of Krome Avenue subject to the Lane Increase Changes. The Lane Increase Changes do not mandate that the portion of Krome Avenue that they govern be four-laned. They simply allow four-laning if a PD&E Study is conducted by FDOT that determines four-laning is the best way to address the safety issues. While the Lane Increase Changes give a designation to the Changed Segment of Krome Avenue that would allow it to be four-laned, it will not be four-laned until it is determined on the basis of further study in the future that four-laning is the best alternative for improving the Changed Segment. The Lane Increase Changes, without regard to the New Supermajority Policies, are supported by adequate data and analysis. This data and analysis consists of studies and commentaries by FDOT, including the Kittelson Reports and the 1999 Action Plan. The Lane Increase Changes do not authorize construction of improvements to the road. They do not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land." (Tr. 671) It is only actual development that would cause potential urban sprawl that might threaten agriculture or pose a danger to the Everglades. Before any development could take place, additional amendments would have to be made to the CDMP. Those amendments would be subject to the same process as the Plan Amendment has undergone and is now undergoing. In other words, the potential dangers feared by Petitioners could not materialize without adoption of additional plan amendments. Furthermore, the fears held by Petitioners are mitigated by the New Supermajority Policies. DCA Review The entire package of amendments in the second round of 2002 for the CDMP, which included Application 16, is referred to by DCA as "Miami-Dade County 02-2 Proposed Comprehensive Plan Amendments." See Joint Exhibit 11. Initial staff review of Miami-Dade County 02-2 culminated in a August 5, 2002 memorandum (the "Pre-ORC Staff Analysis Memorandum") to the Chief of the Bureau of Comprehensive Planning from a Senior Planner. The staff analysis is summarized in the memorandum: Staff has identified two potential ... objections with the Krome Avenue (FIHS facility) segment[5] amendment concerning internal inconsistency with the CDMP objectives and policies, and lack of supporting data and analysis addressing public safety. Joint Exhibit 11, p. 1. With regard to the "safety" data and analysis, staff wrote, "the amendment is not supported with adequate data and analysis which demonstrates consistency with the CDMP policies which allow for capacity improvements outside the Urban Development Boundary (UDB) only upon showing the amendment is 'necessary' to address public safety." Id., p. 3. The CDMP objectives and policies were summarized as follows: The corridor runs through Agriculture and Open Land use categories. In order to promote the agricultural industry, the CDMP clearly states, under its Agriculture land use category, facilities which support or encourage urban development are not allowed in the amendment area. The subject segment of the roadway currently runs north-south through an extensive area of active farmlands, except the northern portion between US 41 (SW 8th Street) and SW 56th Street which is designated as Open Land in the CDMP's FLUM. The CDMP also states that Open Land designated land, is not simply surplus undeveloped land, but rather land that is Id. intended to serve for production of agriculture, limestone extraction, resource- based activity such as production of potable water supplies or other compatible utility and public facilities or rural residential development at no more than 1 du/5 acres. The amendment area is also a prime candidate for conservation, enhancement of environmental character, and for acquisition by federal, state, regional, county or private institutions that would manage the areas for optimal environmental functions. Beyond SW 8th Street to Okeechobee Road is the environmental and wellfield protection areas through which the upper Krome Avenue runs. One mile west of the segment is the Everglades National Park Expansion Area (Attachment 3) which is authorized by the Congress for federal acquisition. Agriculture is the existing primary use of the corridor area as shown in (Attachment 4). The concern with regard to inconsistency was expressed in this way: Id. Staff is concerned that expansion of Krome Avenue will increase market pressure in the western MSA's within the UDB, resulting in the premature extension of the UDB. Staff concurs with County staff that the widening will cause appraisals to increase property values in the corridor, causing farmers to sell agricultural lands for urbanization. It is also likely that property values will increase on environmental/open lands which should be maintained for water management, resource protection and other functions related to Everglades protection. Within two weeks of the Pre-ORC Staff Analysis Memorandum, DCA issued the ORC Report. In a cover letter, Bureau Chief Charles Gautier wrote the following synopsis of the ORC: The Department is concerned that the widening of Krome Avenue or a segment of it will undermine the County's ability to control urban sprawl and impacts to agriculture and environmental lands. While we share concerns regarding accidents and fatalities on Krome Avenue, we recommend that the County fully evaluate all possible alternatives designs, including implementation of the FDOT 1999 Krome Avenue Action Plan, before considering the four lane option to address public safety. Department staff is available to assist your staff as they formulate the County's responses to the objections and recommendations for the amendment. Joint Exhibit 20, 1st page of the cover letter dated August 16, 2002. Miami-Dade County responded to the ORC Report by clarifying its interpretations of provisions in the CDMP, particularly LUE 2B, and by providing additional data and analysis. Department staff struggled with the response, but ultimately concluded that Miami-Dade County's interpretations were defensible and recommended the Plan Amendment be found in compliance. See Joint Exhibit 16. On December 18, 2002, the Department wrote to Miami- Dade County that it had determined the Plan Amendment to be in compliance. Accordingly, a Notice of Intent to determine the Plan Amendment in compliance was published in the Miami Herald on December 20, 2002. The Petition After the issuance of the notice of intent by the state land planning agency (DCA) to find the Plan Amendment in compliance, this proceeding was initiated by the filing of a petition as allowed by Section 163.3184(9)(a), Florida Statutes. The petition was filed by Sierra Club and John S. Wade and joined by Intervenor, Monroe County. The issues presented by the petition that remain after the parties entered a preheating stipulation filed with DOAH are stated in a section of the stipulation entitled, "D. Issues of Law and Fact That Remain to Litigated." Material Issues of Ultimate Fact While not exhaustive, the parties agree that the following are the major issues of disputed fact: Whether the amendment is consistent with legal provisions concerning the discouragement of urban sprawl. Whether the amendments will have a material impact on the agricultural industry in south Miami-Dade County. Whether the amendments will have a material impact on the restoration of the Everglades. Whether the plan amendments is necessary to address public health and safety and serve localized needs. Issues of Law Whether the Plan Amendment is in compliance. Whether the Plan Amendment maintains the Plan's internal consistency and reflects the plans goals, objectives and policies, per 163.3177(2) Rule 9J-5.005(5)(a)&(b), F.A.C., specifically in regard to: Transportation Element Policy 4C. FLUE Policy 2B. FLUE Policy 8F. Transportation Element(TE) Policy 4C. FLUE Policy 3B. Whether the Plan Amendment is supported by data analysis as required by Sections 163.3177(6)(a), (8), and (10)(e), Fla. Stat. and Rules 9J-5.005(2) and (5), F.A.C. Whether the Plan Amendment is inconsistent with Fla. Admin. Code Rules 9J- 5.006(5)(g)(1)-(10) and (13), and Rules 9J- 5.006(5)(h), (i), and (j)(6), (18), and (19) because it fails to coordinate future land uses with the appropriate topography and soil conditions, and the availability of facilities and services; ensure the protection of natural resources; and discourage the proliferation of urban sprawl. Whether the Plan Amendment is inconsistent with Rule 9J-5.019(3)(d), (f), (i) and 9J-5.019(4). Whether the Plan Amendment is inconsistent with Rule 9J-5.005(6), FAC because it fails to establish meaningful and predictable standards for the use and development of land and fails to provide meaningful guidelines for the content of more detailed land development and use regulations that would prevent the urban sprawl and impacts to agricultural, rural and environmentally sensitive lands caused by the four-laning of Krome Avenue. Whether the Plan Amendment is inconsistent with Sections 163.3177(6)(a)- (g), (8) & (10(e), Fla. Stat. Whether the Plan Amendment is inconsistent with the Strategic Regional Policy Plan of the South Florida Regional Planning Council as a whole, and directly conflicts specifically with: Strategic Regional Goal 2.1 (1) Policy 2.1.4 (2) Policy 2.1.10 (3) Policy 2.1.14 Strategic Regional Policy 2.2.1 Strategic Regional Policy 3.9.1 Whether the Plan Amendment is inconsistent with the State Comprehensive Plan as a whole, including: Goal 15 (a) (LAND USE); Policy 15(b)1; Policy 15(b)6 Goal 16(a) & (b)(URBAN DOWNTOWN REVITALIZATION) Goal 17(a) (PUBLIC FACILITIES); Policy 17(b)1 Goal 19(a); Policy(b)12 Goal 22(a) & (b) (AGRICULTURE) Pre-hearing Stipulation, Section D. The Parties The Sierra Club is a national organization with close to 800,000 members. Qualified to do business in the State of Florida, 30,000 or so of the Sierra Club's members are in its Florida Chapter. About 2800 Sierra Club members live and work in Miami-Dade County where the Miami Group of the Florida Chapter of the Sierra Club holds regular meetings. The Miami Group is a "wholly owned subsidiary . . of the national organization." (Tr. 235) "[A]s opposed to some other organizations which may have separate chapters . . . separately . . . incorporated in their local jurisdictions," the Miami Group, the Florida Chapter and the national organization of the Sierra Club "speak with one voice . . . ." Id. Organized to explore, enjoy and protect particular places around the globe, to practice and promote the responsible use of the earth's ecosystem, to educate and enlist humanity to protect and restore the quality of the natural and human environment and to use all lawful means to carry out these objectives, the Sierra Club has taken numerous actions in support of restoration and preservation of the Everglades. The Sierra Club has been involved on many occasions in growth management issues in different parts of the state. It is particularly concerned about public policy issues that affect Miami-Dade County, including increased urban sprawl, the loss of agricultural lands, clean water, clean air, open space, parks and recreation and the associated loss of quality of life. A substantial number of Sierra Club members use areas surrounding Krome Avenue to recreate and regularly traverse the area on their way to the Everglades, Biscayne National Park, and Florida Keys National Marine Sanctuary as well as using the area for biking, hiking, bird watching, and picking tropical fruits and vegetables. A substantial number of members also regularly use and enjoy Everglades National Park and Florida Bay and use Krome Avenue en route to these destinations. Representation of its members' interests in administrative proceedings to enforce growth management laws is within the corporate purposes of Sierra Club. In keeping with its purposes, the Sierra Club commented to the Board of County Commissioners regarding the Plan Amendment between the time of its transmittal to DCA and its adoption. John S. Wade, Jr., operates an interior foliage or a "container" nursery business at 20925 S.W. 187th Avenue "in the center of the Redlands area," tr. 210, one mile due west of Krome Avenue. Mr. Wade has been extensively involved in county planning issues for many years. A member of the Sierra Club, he is also an individual Petitioner in this proceeding. Mr. Wade commented to the Board of County Commissioners regarding the Plan Amendment between the time of transmittal to DCA and their adoption. Mr. Wade believes that the Plan Amendment affects his interests in that it will have a negative impact on wildlife which he enjoys and on his nursery business. The parties stipulated that Mr. Wade is an "affected person" with standing to bring and maintain this action under Section 163.3184, Florida Statutes. Roads and Land Use: General Impact Chapter 163, Florida Statutes, establishes an important link between planned road infrastructure and future land use decisions. The future transportation map, furthermore, plays a critical role in the future land use pattern of a local government, particularly with regard to roadways. The impact of a road-widening amendment is relevant to land use or environmental policies. There is, moreover, no question that improved or expanded transportation infrastructure does nothing to diminish the potential for development in surrounding areas as a general matter. In general, widening a roadway promotes development in surrounding areas served by the roadway. Growth management laws, therefore, generally discourage the provision of roadway capacity in areas where a local comprehensive plan discourages development. The general principles of the effects of roadway capacity and improvements to roadway infrastructure, including road widening, are also reflected in the State Comprehensive Plan, the Regional Policy Plan, Florida Administrative Code Chapter 9J5, and the CDMP, itself. Petitioners and Monroe County emphasize this point in the following paragraphs of their proposed recommended order now found as fact in this Recommended Order: []. Goal 19(a) of the SCP requires that future transportation improvements aid in the management of growth. Fla. Stat. 187.201(19)(a). []. Policy 19(b)(12) of the SCP requires that transportation improvements in identified environmentally sensitive areas such as wetlands be avoided. Fla. Stat. 187.201 (19)(b)(12). The Regional Policy Plan states that "roadways also aid in attracting development to new areas." Jt. 7@ 36. Rule 9J5 recognizes limits on extending infrastructure as a development control that can inhibit sprawl. Conversely, making improvements or extensions to infra- structure [when considered in isolation] can encourage urban sprawl. Darst V9@ 972. The CDMP's data and analysis contains the following language: Concepts and Limitations of the Land Use Plan Map: Coordinated- Managed Growth (p. I-59) "Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard, the UDB serves as an urban services boundary in addition to a land use boundary.Consistency with the CDMP will ensure that the actions of one single-purpose agency does not foster development that could cause other agencies to subsequently respond in kind and provide facilities in unanticipated locations. Such uncoordinated single- purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives." (Pre- Trial Stip. @ 18) (emphasis added) Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 7. Miami-Dade County, the Department and the City of Homestead do not contend otherwise. In the words of Thomas Pelham, distinguished expert in comprehensive planning whose testimony was presented by Miami-Dade County, the transportation map is "always relevant" (tr. 709) to issues of encouragement and discouragement of urban development. Furthermore, as Miami-Dade County concedes and as Mr. Pelham testified, new roads and improvements in roadway infrastructure "can aid in attracting development in new areas anywhere." Tr. 713 (emphasis supplied). For that basic reason, if a local government adopts a plan amendment that increases roadway capacity and the intent is not to attract development to the area around the roadway, the local government may opt to adopt additional protective policies. For example, in such a situation, the local government could take a clarifying step toward discouragement of urban development in areas served by the roadway planned for improvement: simultaneous adoption of a policy that prohibits consideration of the additional planned capacity of a roadway in subsequent future land use map decisions. Such an additional policy was not adopted as part of the Plan Amendment. In Mr. Pelham's opinion, however, it was not necessary, because of "the strong policies that already exist in the [CDMP]." Tr. 714. These strong policies include, of course, the existence of the UDB, a planning concept associated with Miami-Dade County in a unique manner in the State of Florida due to its strength and the length of existence over time. They also include CDMP policies related to lands designated as "Agriculture" or "Environmental Protection" whose purpose is to preserve and protect. The impact of roads on land use patterns in general, moreover, does not necessarily translate into expected impact in any specific case because of facts peculiarly associated with the specific case. As Mr. Pelham testified, "[t]here is absolutely nothing inconsistent with the four-lane divided highway in rural areas and agricultural areas. We have them all over the country, and in fact, you can identify numerous ones in this state alone." Tr. 676. Three prominent examples in Florida of four-lane divided highways that have not led to development were provided at hearing: Alligator Alley (the segment of Interstate 75 known also as Everglades Parkway) that stretches nearly the width of the Florida Peninsula from Collier County not far from the City of Naples at its western terminus through Big Cypress National Preserve across the boundaries of the Miccosukee Indian Reservation and the Big Cypress Seminole Indian Reservation into Broward County on the east; the Florida Turnpike running from deep in South Florida northward and westerly to Wildwood in Sumter County; and Veteran's Parkway, US 19, from Pasco County to Crystal River "that goes through vast stretches of rural and agricultural lands . . . ." Tr. 677. The construction of these four-lane divided highways have not promoted urban development in lands immediately adjacent to significant sections of these highways. That these highways did not promote urban development flows from their purpose. Their purpose, quite simply, is other than to support urban development. Their purpose is to provide efficient commercial transportation and to be safe for the transportation of people or as expressed at hearing, "to be conduits for people to go from one [point] to another without interruption in an efficient manner." Id. Furthermore, access to these rural, divided four-lane highways is restricted or tightly managed for several reasons. One of the benefits of restricted access is that it discourages urban development. While Miami-Dade County did not adopt a policy that a widened Krome Avenue was not to be taken into consideration in subsequent decisions to amend the future land use map, as Petitioners suggest it could have, New Transportation Policy 4E was added to the Plan Amendment in order to discourage urban development. That policy requires a detailed, binding controlled access plan for the Avenue corridor to be prepared by FDOT and adopted by Miami-Dade County prior to the commencement of any construction associated with four-laning or a capacity improvement. Adoption of such an access control plan will have a deterrent effect on urban development along whatever part of Krome Avenue may at some point in the future be widened to four lanes. The effect of the adoption of a binding access control plan was explained at hearing by Mr. Pelham: It means that most of the traffic on it is not going to be entering or leaving the highway to shop at retail commercial establishments or to go into office parks to work, or to frequent any of the other kinds of urban development that could spring up along the road. It will be a deterrent to anyone who wants to seriously talk about locating a business there because they're going to realize that the public does not have readily easy access to it. [New Transportation Policy 4E] will certainly help insure that [Krome Avenue] remains a primarily rural facility rather than the typical urban highway that's lined with urban development. Tr. 679. From a planning perspective, in addition to being an impediment to urban development, the New Binding Access Control Plan Policy is also a sufficient guideline to discourage urban development. Incorporation of the professional land planning concept of access control makes the policy clear to transportation planners and FDOT and to any party or entity called on to implement the plan especially when the last sentence of the new policy is considered: "[The binding access control plan] should emphasize access to properties fronting Krome Avenue primarily through alternative street locations." This sentence indicates that while access to Krome Avenue is not prohibited, access is to be governed by "a strictly limited access plan," tr. 681, a "strong benefit [of the Plan Amendment] and a strong disincentive or deterrent to urban development." Tr. 679. Urban Sprawl Internal DCA memoranda and the ORC Report reflect a concern by Department staff that the re-designation of Krome Avenue could encourage urban sprawl with serious negative impacts to the Redland and agricultural lands and the Everglades and areas designated to be protected environmentally. The concern of staff is not to be taken lightly. Re- designation of Krome Avenue as a Major Roadway with four-lane capacity will allow parties who seek to develop along Krome Avenue in the future to point to the new "planned" capacity as a factor in support of an amendment to the CDMP that would allow such development. "That's a . . . common argument for why a plan amendment . . . increasing densities in that area . . . [would be] appropriate." Tr. 494. The planned roadway will be more than just fuel for argument. According to Charles Pattison, Petitioners' comprehensive planning expert with significant credentials and experience, the planned capacity increase is without doubt a "key factor," tr. 494-5, for consideration of decision-makers in support of future CDMP amendments that allow urban development. Still, the existing policies that protect agricultural and environmentally sensitive lands, including the UDB and related policies, will also have to be taken into consideration. So will the results of FDOT's PD&E Study and the actual improvement undertaken under the guidance of the study by FDOT, if any, and in whatever form it may take. The policies should not fail to protect agricultural and environmentally protected land merely because of this plan amendment. The policies will not cease to be operative because of the re- designation of Krome Avenue even if FDOT ultimately decides to improve Krome Avenue by widening all or part of it to four lanes. Stated alternatively, in Mr. Pelham's words, existing policies "militate strongly against any urban development ... [outside] the urban growth boundary." Tr. 675. For this reason, among others, Mr. Pelham characterized the concerns of DCA staff and the fears of Petitioners, as "sheer speculation, suspicion and mistrust of . . . government . . . [of] a county that has a strong record of not extending its urban growth boundary." Id. Furthermore, it must be kept in mind what the re- designation of Krome Avenue does and does not do. It does not constitute the ultimate decision or authorization necessary to widen or improve the capacity of Krome Avenue. It does not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land." Tr. 671. It is that development which "would cause potential urban sprawl problems that might threaten agriculture, that, theoretically, might pose a danger to the Everglades." Id. Development of that property would require plan amendments, vulnerable to challenges like this one and subject to scrutiny under the Growth Management Laws, Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J5. Amendment of the CDMP, therefore, to "allow widening of an existing road to address safety or congestion or level of service or evacuation problems, in and of itself, does not pose any of those threats or harms." Tr. 672. Rule 9J5 Urban Sprawl Indicators Urban sprawl is evaluated according to 13 "primary indicators" set forth in Florida Administrative Code Rule 9J- 5.006(5)(g) (the "Primary Indicator Rule.") Applying the Primary Indicator Rule, the Department analyzes first, "within the context of features and characteristics unique to each locality" whether a plan amendment "trips" or "triggers" any of the 13: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in the loss of significant amounts of functional open space. Fla. Admin. Code R. 9J-5.006(5)(g). If a plan amendment trips or triggers one or more of the Primary Indicators, the Department then considers the extent to which the tripped indicators suggest that the amendment does not discourage the proliferation of urban sprawl, or put conversely, induces sprawl. If the Department determines from review of the tripped indicators that the amendment does not discourage urban sprawl proliferation or in induces sprawl, then it turns its attention to the development controls in the comprehensive plan or in the proposed plan amendment. Evaluation of the development controls is made to determine whether they offset the amendment's inducement of urban sprawl. If the inducement is not sufficiently offset by development controls, then, the Department determines the amendment is not: consistent with relevant provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, F.S., and the remainder of [Florida Administrative Code Chapter 9J-5] regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources. Fla. Admin. Code R. 9J-5.006(5)(a). It is possible that if only a few of the 13 Primary Indicators were clearly "tripped" then a determination could be made that a plan amendment "does not discourage the proliferation of urban sprawl." Normally, however, if few primary indicators are tripped, "it's going to be a tough argument to make that [there is] sprawl inducement." Tr. 919. The Department's Position re: Primary Indicators The Department's position is that the Plan Amendment does not trip in any way 10 of the 13 primary indicators listed in the Primary Indicator Rule. The main reason they are not tripped, in its view, is because the amendment, in and of itself, does nothing more than plan for the improvement of Krome Avenue up to a capacity of four lanes. For example, the first primary indicator is whether the plan amendment "[p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need." Fla. Admin. Code R. 9J-5.006(5)(g)1. As Mr. Darst testified, "[T]his is an amendment for the widening of the road and it's not a land use amendment." Tr. 913-4. In and of itself, the amendment does not allow or designate any development. Primary Indicator 4 is not tripped because "premature or poorly planned conversion of rural land to other uses" is not at issue in this case. An analysis of Primary Indicator 5 can only take place "within the context of features and characteristics unique" to Miami-Dade County, including the UDB and the protective policies of the CDMP and the Plan Amendment, itself. Primary Indicators 9 through 13, are not tripped. Primary Indicators 9 through 12 are not relevant to this case. Primary Indicator 13 is not tripped because although small amounts of functional open space might be taken for widening Krome Avenue, the amount would not be significant relative to the amount of functional open space adjacent to Krome Avenue. Of the other three primary indicators tripped in the Department's view by the Plan Amendment, they are tripped only minimally. Primary Indicator 6 is tripped because with Krome Avenue widened "trips shift there from another road," tr. 916, so that maximum use is not made of the other road, an existing public facility. The same is true of Primary Indicator 7, which relates to future public facilities. Primary Indicator 8 is tripped because funds will have to be expended to construct any widening and because of an increase in law enforcement expenses. The involvement of Primary Indicator 8, however, is minimal and without significant impact. Despite the Department's position, the re-designation of Krome Avenue, at a minimum, has at least the potential to "promote" development so as to trip Primary Indicators 1, 2, and As Mr. Pattison testified, the planned increased capacity of Krome Avenue is, by the very nature of increased roadway capacity, a key factor for consideration of proposed amendments that would allow increased development of lands surrounding Krome Avenue. Whether the Plan Amendment is not in compliance for failure to comply with urban sprawl requirements depends on whether the tripped Primary Indicators are offset by development controls. Development Controls Florida Administrative Code Rule 9J-5.006(5)(j, (the "Development Controls Rule") states "[d]evelopment controls in the comprehensive plan may affect the determination in (5)(g) above," that is, whether a plan amendment does or does not discourage the proliferation of urban sprawl. Determination that urban sprawl indicators have been tripped, therefore, is not, standing alone, sufficient to find that a plan amendment fails to discourage urban sprawl. The Development Controls Rule lists 22 types of development controls to be evaluated to determine how they discourage urban sprawl. The CDMP contains development controls to discourage urban sprawl and development in areas designated Agriculture, Open Land or Environmental Protection. They are the UDB, see Florida Administrative Code Rule 9J-5.006(5)(j)21., and the two policies related to it: Land Use Element Policies 8G and 8H. Evaluation of the development controls in the CDMP leads to a determination that the tripped Primary Indicators, Primary Indicators 1, 2, and 3, triggered by the Plan Amendment's potential to promote development that could lead to urban sprawl and Primary Indicators 6, 7 and 8, all "minimally" tripped, are offset by the development controls. Furthermore, the Plan Amendment, itself, contains additional policies that constitute development controls: the New Land Use Policies requiring super-majorities of the Board of County Commission for approval of re-designations near Krome Avenue and the New Binding Access Control Plan Policy. See Fla. Admin. Code R. 9J-5.006(5)(j)15. and 22. Petitioners view the New land Use Policies as inadequate development controls because they do not set forth measurable or predictable standards to govern county commission decisions. Other than to require super-majorities for re- designation of land uses near Krome Avenue ("procedural" standards), the New Land Use Policies do not contain standards that govern county commission decisions. But there are a plethora of standards elsewhere in the CDMP. These other standards have been determined to be meaningful and predictable and there is nothing in the New Land Use Polices that allows the commission to disregard them. New Policy 4E which requires an access control plan prepared by FDOT prior to construction of any capacity improvement to Krome Avenue is viewed by Petitioners as "so vague as to fail to meet the definition of an objective or policy or to provide meaningful or predictable standards." Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 18. But a reading of the policy contradicts the allegation. Meaningful and Predictable Standards Petitioners allege that the Plan Amendment is inconsistent with land use policies requiring coordination with the surrounding environment and requiring meaningful standards for more detailed regulations, and, therefore, that it is inconsistent with Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(6). The CDMP contains meaningful and predictable restrictions on land use in areas designated Agriculture, Open Land and Environmental Protection. The Plan Amendment does nothing to deter those restrictions. Furthermore, among new policies in the Plan Amendment is the addition of procedural safeguards to the substantive criteria, thereby strengthening the existing standards. The Plan Amendment, therefore, retains meaningful and predictable standards for more detailed regulation, and if anything, strengthens the chance for their application to protect lands designated Agriculture, Open Land and Environmental Protection. Increasing Land Values and Speculation Petitioners argue that widening Krome Avenue to four lanes will adversely affect farming in the Redland and the Everglades by increasing land values and speculation. These arguments do not take into account that regardless of improvements to Krome Avenue, most of the area north of 42nd Street has little appeal to developers. Its designation as Environmental Protection makes it difficult if not impossible to develop. Despite extreme development pressure elsewhere in the county, to date there has been little pressure to develop the area due to the success of the comprehensive plan, particularly its policies against development in the area. Asked at hearing about such pressure, Miami Dade County's Director of Planning and Zoning, Diane O'Quinn responded, ". . . I haven't seen it. Not at all . . . because we've got very strong environmental policies in the comp plan." Tr. 625. Furthermore, considerations of increasing values and land speculation are not compliance issues under Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. Were they compliance issues, there are other forces at work that are encouraging an increase in land values in the Redland: in particular, the economics of the agriculture industry and the increasing demand for residential housing throughout Miami-Dade County. Agricultural uses in the County have been declining since Hurricane Andrew in 1992. Up to then, the predominant forms of agriculture had been row crops (tomatoes, for example) and lime, avocado and mango groves. Andrew destroyed many groves. They were not replanted because of expense and the length of time it takes from planting for the groves to bear fruit and increasing competition from foreign producers. Within a year or two of the hurricane, the North American Free Trade Act (NAFTA) was passed and produce from Mexico and Central America was introduced in great volume into U.S. markets. The south of the border competition generated by NAFTA, especially with regard to tomatoes and limes, reduced the value of the type of produce that had been predominant in the Redland prior to Andrew. Ten years later, the University of Florida's Florida Agricultural Market Research Center in the Summary and Recommendations Section of its Miami-Dade County Agricultural Land Retention Study (the "Agricultural Land Retention Study") described the market for agricultural commodities produced in Miami-Dade County as "fiercely competitive," Joint Exhibit 55, p. xiv, because of Latin American produce and predicted, "[e]conomic globalization and trade liberalization will continue. It is unlikely that the U.S. trade policy will be altered to any appreciable degree in the foreseeable future to protect domestic fruit and vegetable industries." Id. at xiii. Testimony at hearing established that these predictions have been accurate through the time of final hearing in late 2005. The Study, completed in April 2002, also reached this conclusion: Population growth and concomitant urban development appear inevitable for Miami-Dade County. Based on the capitalization of relatively low financial returns to agriculture in recent years, especially row crops, only about twenty-five percent of the current land prices is justified by returns to land in agricultural uses. The remaining seventy-five percent represents future anticipated value in non-agricultural or I agricultural residential use. Further, as supply of developable land dwindles, prices will undoubtedly increase. These price increases, if accompanied by chronically low financial returns to agriculture, will motivate landowners to convert to agricultural land to higher-valued uses. Joint Exhibit 55. p. xiii. This observation continued to have validity more than three years later at the final hearing in this case in late 2005. Following Andrew, land prices that had been stagnant for many years at $5,000 per acre or so increased three and four fold. The increases made it relatively expensive to buy land, plant and grow. The combined effects of Andrew and NAFTA reduced row crop and grove produce profitability. The agricultural industry shifted to ornamental horiculture nurseries. At the time of hearing, land prices had risen so much that even the nurseries whose products have been in demand for residential development have begun to become economically infeasible. Soon after 1992, the SFWMD also began buying property for Everglades restoration projects west of a levee on the west side of Krome that runs parallel to the roadway. These purchases too increased land values in the area. The recent rise in prices is also due to the low interest rate environment that began to have a wide-spread effect in early 2000. The low interest rate environment spurred demand for single-family homes. Furthermore, with the stock market decline that commenced in early 2001, investors began shifting from equities to real estate and demand for second homes increased. Miami-Dade County's excellent weather attracts people from all over the world and this has fostered increased foreign investment in the local real estate market. The combination of all these events led to acquisition of land for residential development throughout Miami-Dade County by developers. The diminution in the amount of vacant residential land naturally turned the attention of developers to agricultural areas and to the Redland where density is limited to one hours per five acres. The increased demand for housing led to price escalation so that five-acre parcels in the Redland became relatively inexpensive. The confluence of these factors accelerated the subdivision of agricultural properties into five-acre residential estates in the Redland. This trend began with Krome Avenue as a two-lane road and it is reasonably expected to continue, regardless of whether Krome is improved to four lanes or not. The trend toward development of five-acre residential estates will likely stave off further urbanization of the Redland. As the area is developed at one house per five acres, it becomes difficult to reassemble acreage to create subdivisions of higher density. For properties in the Redland that do not directly abut the road, the price of land is unrelated to Krome Avenue. Rather, it is based on the increasing demand for five-acre estates. The New Land Use Policies will likely restrain speculation based on the re-designation of Krome Avenue. One of the components of value is the probability of rezoning. Often much more important to land values are other factors: the land use plan designation and the history of land use in the surrounding areas. The planning and zoning restrictions, particularly in the light of the New Land Use Policies, send a signal to the market that the area around Krome Avenue is not slated for urbanization. The restrictions thereby limit increase in value and dampen speculation based on the potential widening of Krome Avenue. The trend in converting agricultural lands to residential uses has been in the making in Miami-Dade County for at least 30 years. The interplay between the agricultural and housing markets is the result of far larger forces than whether Krome Avenue is re-designated for improvement up to a divided four-lane roadway making any such re-designation of minor impact. As Mark Quinlivan, an expert in the field of real estate valuation in particular with regard to the areas along the Krome Avenue Corridor and the Redland, summed up the situation at hearing: So the trend is and has been for the last few years . . . to convert [the Redland] to five acre estates. Once they are converted to five acre estates and the homes are actually built, there is really not much else that can be done. Now you can't tear down the house and re-subdivide it if you could rezone. . . . [W]hether you put Krome as two lanes, four lanes, six lanes this trend is way beyond this amendment . . . Tr. 264. Environmental Impacts Although whether Krome Avenue will ever be improved to four lanes north of US 41, most of which crosses lands designated Environmental Protection depends on an environmental evaluation and other factors subject to an FDOT PD&E Study, it must be assumed for purposes of this compliance determination that it is allowed to be four lanes. The same assumption must be made for all of Krome Avenue subject to the Plan Amendment. Were a new plan amendment to be applied for, however, to re- designate land adjacent to Krome Avenue, road capacity would be a "minor" consideration because development control "policies in the plan are very strong and they're much more important and that would override the fact that there happens to be road capacity available." Tr. 737. The County recognizes the importance of maintaining a buffer between urban development and the Everglades. This recognition is reflected in CDMP policies. The CDMP, moreover, attempts to prevent the loss of environmentally sensitive lands. In the 1990's Congress required the U.S. Army Corps of Engineers to develop a plan to reverse as much as possible the anthropogenic damage inflicted upon the Everglades. The result was CERP, a joint federal/state plan to restore the Everglades by completing sixty-eight individual projects by 2038 costing many billions of dollars. Adopted by an Act of Congress in 2000, CERP directs the Corps to restore the Everglades using CERP as a guideline. With the exception of 10 of the projects authorized by the act, each of the other 58 individual CERP projects must undergo a specific process of planning and then Congressional authorization and appropriation. There have been no Congressional authorizations since 2000. The 58 projects not authorized in 2000 still await final planning and design and Congressional authorization and appropriation. Because of a design of Krome Avenue improvement has not been proposed, it is not possible to determine whether the widening of Krome Avenue will physically impact CERP projects. The concern advanced by Petitioners is that improvement to Krome Avenue will not only decrease the availability of land availability to CERP but will also raise land values. The concern is appropriate because, in general, the primary strategy of CERP is the acquisition of privately-owned land to dedicate to water storage, wetland restoration, and other related uses. "Most [CERP] projects have land acquisitions as the single largest factor in their cost." Tr. 415. Escalating real estate costs is a significant issue for CERP project managers attempting to stay within budget. As land acquisition costs increase, it becomes more difficult to get adequate funding or even authorization of a project. Furthermore, the federal authorization law requires a re- authorization by Congress if projected initial costs are exceeded by more than 20 percent. One of the critical aspects of CERP is water storage for which significant amounts of land must be acquired. There are numerous water storage restoration projects planned in the vicinity of Krome Avenue dependent on land acquisition. Petitioners recognize, however, that there is a certain amount of speculation in any anticipation of a rise in land values in the area of Krome Avenue. "If widening Krome Avenue raises the value . . . of surrounding lands it will have an adverse affect on the success of the Everglades restoration project." Petitioners and Intervenor Monroe County's Proposed Recommended Order, para. 95, p. 16 (emphasis supplied). Furthermore, as found already, the rise is dependent on re- designation of lands in the area of Krome Avenue, which are subject to policies in the CDMP, such as the existing Conservation Element, that discourage re-designation in a manner that would stimulate a rise in land values. It is sufficient for the CDMP to have policies that direct development to minimize impacts to environmental resources and guide the more detailed analysis that will be performed pursuant to the PD&E Study and further regulations. As Thomas Pelham explained: The purpose of the comprehensive plan is to establish policies that will be applied to and will govern actual development proposals that come in under the plan. It's not the purpose of a comprehensive plan to do a development permit level analysis. You do that when development permits are applied for . . . until you have . . . a specific proposal for a road, actual alignment, design features, you can't really fully analyze the impacts of it, anyway. . . . [T]he comprehensive plan . . . establish[es]] in advance policies that are reviewed for adequacy for protecting natural resources, the environment, so, that when someone comes in with an actual development proposal, then, it has to be evaluated in terms of the policies in the plan, and if it's not consistent, the law requires that it be denied. Tr. 686-7. The existing Conservation Element and other CDMP policies that protect environmental resources adequately address the potential impacts of the Krome Avenue Amendment vis-à-vis the environment and environmental considerations. South Florida Regional Policy Plan Amendments must be consistent with the Strategic Regional Policy Plan (SRPP) in order to be in compliance. § 163.3184(1)(b), Fla. Stat. SRPP Goal 2.1 is to achieve long-term efficient and sustainable development patterns by guiding new development and redevelopment into area which are most intrinsically suited for development. This includes areas where negative impacts on the natural environment will be minimal and where public facilities/services already exist, are programmed, or on an aggregate basis, can be provided most economically. SRPP Policy 2.1.4 requires development to be directed away from environmentally sensitive areas. Strategic Regional Goal 2.2 is designed to revitalize deteriorating urban areas. SRPP Policy 2.2.1 requires priority for development in blighted areas characterized by underdevelopment/under- employment that are in need of re-development. SRPP Policy 3.9.1 is designed to direct development and uses of land inconsistent with restoration away from Everglades and adjacent natural resources of significance. State Comprehensive Plan Section 187.101(3), Florida Statutes, states the following with regard to the construction of the State Comprehensive Plan: The [state comprehensive] plan shall be construed and applied as a whole, and no specific goal or policy in the plan shall be construed or applied in isolation from the other goals and policies in the plan. Petitioners do not ignore this provision of the statutes, citing to it in their proposed recommended order. See Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 41. Petitioners contend that it is beyond fair debate that the Plan Amendment is inconsistent with the State Plan as a whole and that it is specifically inconsistent with the following provisions in the State Plan: LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies.-- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. 6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water and other natural resources to meet demands; and the potential for flooding. URBAN AND DOWNTOWN REVITALIZATION.-- (a) Goal.--In recognition of the importance of Florida's vital urban centers and of the need to develop and redevelop downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. PUBLIC FACILITIES.-- Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for an finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.-- 1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities. TRANSPORTATION.-- Goal.--Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. 12. Avoid transportation improvements which encourage or subsidize increased development in coastal high-hazard areas or in identified environmentally sensitive areas such as wetlands, floodways, or productive marine areas. AGRICULTURE.-- (a) Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Id. at pgs. 41-43.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the October 2002 Plan Amendment to the Comprehensive Development Master Plan of Miami- Dade County adopted by the Board of County Commissioners for Miami-Dade County as reflected in Ordinance No. 02-198 be determined to be "in compliance." DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 16th day of June, 2006.
The Issue The issue is whether the small scale development amendment adopted by Respondent, Santa Rosa County (County), by Ordinance No. 2005-R-70 on February 23, 2006, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The record in this case is extremely brief, thus accounting for the brevity of this Recommended Order. Petitioners, Larry Seal and Michelle Seal, reside at 7564 East Bay Boulevard, Navarre, Florida, an unincorporated community within the County. Although Boardwalk did not present any evidence at the hearing, for background purposes only, the parties' pleadings show that Boardwalk is a limited liability corporation which owns a 1.15-acre parcel in Navarre, Florida, and is seeking to have the land use designation on that property changed from Single-Family Residential to Commercial. The pleadings also show that the amendment was adopted by the County on February 23, 2006. Mr. Seal resides within the County. Also, he attended the County meeting on February 23, 2006, and offered comments in opposition to the amendment. As such, he is an affected person and has standing to participate in this proceeding. Mrs. Seal did not attend the final hearing. However, Mrs. Seal's interests are represented by her husband. See Petitioners' Exhibit 1. Whether she owns property adjacent to Intervenor's parcel, as alleged in the Petition, and whether Mr. Seal made comments on her behalf at the County meeting, was not established through Mr. Seal's testimony. Without citing specific portions of the Plan, in their Petition, Petitioners alleged only that the small scale development amendment adopted by the County is internally inconsistent with the Plan.2 Despite this lack of specificity, no discovery was taken by the parties prior to the hearing. At the hearing, Mr. Seal, who is a lay person, asserted that the amendment was inconsistent with Housing Element Policies 51B4 and 51B5 and with undisclosed portions of the Future Land Use Element. (Copies of the Plan itself were not introduced into evidence.) However, it became evident that the two cited policies in the Housing Element relate to land development regulations and are therefore irrelevant.3 See, e.g., Brevard County v. Dept. of Community Affairs et al., DOAH Case Nos. 00- 1956GM and 02-0391GM (DOAH Dec. 16, 2002; DCA Feb. 25, 2003) 2003 Fla. ENV LEXIS 20 at *7 (consistency with land development regulations is not a compliance criterion); Robbins et al. v. Dept. of Community Affairs et al., DOAH Case No. 97-0754GM (DOAH Oct. 30, 1997; DCA Dec. 9, 1997) 1997 Fla. ENV LEXIS 231 at *18 (land development regulations are not relevant to a plan or plan amendment compliance determination). Mr. Seal also asserted that the amendment contravened a resource extraction policy in the Conservation Element but later withdrew that assertion. That policy also appears to have no application to the map amendment. After the County's objection to testimony regarding land development regulations was sustained, Mr. Seal indicated that he did not intend to present any other evidence since the remainder of his prepared testimony related to that subject. Although he was given an opportunity to present further relevant evidence, he rested his case. The County and Boardwalk elected not to offer any evidence in response to Mr. Seal's testimony. Except for a Special Power of Attorney executed by Mr. Seal's wife, no documentary evidence, such as copies of relevant portions of the Plan, the existing and proposed FLUM, drawings or aerial photographs of the property and adjacent area, the application, or the Ordinance which adopted the amendment, was offered into evidence by any party.4 Because Boardwalk did not present any evidence, there is no basis upon which to determine whether it presented written or oral comments, recommendations, or objections to the County during the adoption of the amendment. (In its Motion to Intervene, Boardwalk did allege that such comments were made.) Therefore, there is no evidence to establish that Intervenor is an affected person and has standing to participate in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the small scale plan amendment adopted by Ordinance No. 2005-R-070 is in compliance. DONE AND ENTERED this 6th day of June, 2006, 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 6th day of June, 2006.
The Issue Have the Intervenors timely challenged the Hamilton County adoption of its comprehensive plan under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes? If allowed to pursue their challenge, what is their burden of proof? Is it pursuant to Section 163.3184(9), Florida Statutes, (1991), the "fairly debatable" standard? Is it pursuant to Section 163.3184(10), Florida Statutes, (1991) the "preponderance" standard? Did Hamilton County (the County) fail to adopt its comprehensive plan within sixty (60) days from the receipt of written comments from the Department of Community Affairs (DCA) as required by Section 163.3184(7), Florida Statutes (1991)? If it did, was that failure jurisdictional thereby voiding the adoption process? Within the adopted plan, is Policy V.2.13 requiring special permits for hazardous and bio-medical waste treatment facilities and for their placement in areas designated agricultural and located with the rural area of Hamilton County, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes, (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan set forth in Chapter 187, Florida Statutes (1991) and the North Central Florida Regional Policy Plan? Within the adopted plan is Policy 1.15.1 prohibiting the disposal of medical, bio-hazardous, hazardous or solid waste by incineration or by other methods which produce air pollution, other than by facilities permitted, legally sited and operated as of July 23, 1991, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan as set forth in Chapter 187, Florida Statutes, and the North Central Regional Policy Plan? More particularly must these policies meet and do they meet the requirements for surveys, studies and data set forth in Section 163.3177(6)(a),(8) and (10)(e), Florida Statutes (1991) and Rule 9J-5.005(2), Florida Administrative Code?
Findings Of Fact In December, 1990, Hamilton County prepared a proposed comprehensive plan. That proposal was submitted to the Department in accordance with Section 163.3184(3)(a), Florida Statutes. Within the Conservation Element of the proposed plan the County included Policy V.2.13, which stated: The County shall only allow hazardous and bio-medical waste treatment facilities as special permits within areas designated agricultural and located within the rural area of the County. Further, the County's land development regulations shall include conditions for such approval of a hazardous and bio-medical waste treatment facility as a special permit regarding the location, site design, buffer requirements, access to principal arterials and major intersections, requirements for appropriate public facilities, and require- ments which consider wind currents in relationship to population centers, which will direct any incinerated materials or noxious odors from these population centers. In no case shall a hazardous or bio-medical waste treatment facility be located within an Environmentally Sensitive Area as designated within this Comprehensive Plan. Policy V.2.13 was associated with Objective V.2 which states: The County shall include within the land development regulations, by 1992, provisions for the conservation, appropriate use and protection of the quality and quantity of current and projected water sources, water recharge areas and potable water wells. There was no specific data and analysis in the proposed plan directed to Policy V.2.13. Other policies associated with Objective V.2 addressed water issues. In the data and analysis which the County submitted to DCA with its proposed comprehensive plan the County did identify known pollution problems. This included a reference to point discharges for wastewater, non-point sources of water pollution, point air pollution sources and non-point sources of air pollution. None of the known activities were associated with hazardous and bio- medical waste treatment facilities. The data and analysis associated with the Conversation Element in the proposed plan also identified watersheds, wetlands, lakes, flood prone areas, and current water sources. The data and analysis further discussed the circumstances related to watersheds, wetlands, rivers, lakes, flood prone areas and air quality as the County perceived the existing conditions for those topics. Finally, the data and analysis spoke to the issue of projected water needs. No mention was made concerning how the aforementioned data and analysis would be considered in granting special permits for hazardous and bio-medical waste treatment facilities. On April 14, 1991, DCA transmitted its comments to the County concerning the proposed comprehensive plan and supporting data and analysis, together with its objections and recommendations for modifications to the proposed comprehensive plan. This activity was in accordance with Section 163.3184(6), Florida Statutes. The report that was transmitted is known as the "ORC" Report. The County received the ORC Report on April 22, 1991. The ORC Report made a number of objections to the objectives and policies set forth in the Conservation Element to the proposed comprehensive plan and recommendations for modifications to the same. The ORC Report specifically objected to Policy V.2.13 wherein the DCA stated: Policy V.2.13 does not describe the 'special permits' concerning hazardous and bio-medical waste treatment facilities within agricultural areas, does not define the extent of the buffers, and does not prohibit these facilities in conser- vation areas. The general recommendation to improve Policy V.2.13, among policies found within the Conservation Element, was to this effect: Provide data and analysis to support the above- referenced policies. Revise the policies to identify the specific implementation programs or activities that will be undertaken by the County to achieve the goal and objectives with which the policies are associated. Eliminate or define all conditional and vague language. Revise the Future Land Use Map to support the revised policies. The County then held two public hearings related to the adoption of a comprehensive plan. See Section 163.3184(15), Florida Statutes (1991). The first public hearing was held on June 18, 1991. At that time no decision was reached to adopt a comprehensive plan. The public hearing was adjourned. On July 23, 1991, the County reconvened the public hearing related to the comprehensive plan adoption. Following the second public hearing associated with the plan adoption, the County in the person of its Board of County Commissioners who had conducted the public hearings, adopted a comprehensive plan for Hamilton County. The adopted comprehensive plan was transmitted to DCA on July 30, 1991. The transmittal letter supporting the adopted comprehensive plan noted that the comprehensive plan was adopted on July 23, 1991. The transmittal letter pointed out the changes to the adopted comprehensive plan which were not reviewed by DCA when DCA considered the proposed comprehensive plan. As with the proposed comprehensive plan, the County submitted data and analysis with the adopted comprehensive plan pointing out the data and analysis accompanying the adopted comprehensive plan which had not been reviewed by the DCA when it considered data and analysis supporting the proposed comprehensive plan. Within the conservation element to the adopted comprehensive plan Objective V.2 remained as set forth in the proposed comprehensive plan. Certain policies associated with Objective V.2 had changed. However, Objective V.2. and its associated policies set forth in the adopted comprehensive plan continued to address water issues. In particular, Policy V.2.13 did not change with the plan adoption. Additional data and analysis submitted by the County supporting the Conservation Element to the adopted comprehensive plan deleted the Suwannee River State Park as a conservation area. Specific references were made to Jumping Gully Creek, Swift Creek, Hunter Creek and the Withlacoochee River and activities associated with those water bodies. However, as with the proposed plan it was not explained how the County intended to use the original and additional data and analysis in deciding special permit issues for hazardous and bio-medical waste treatment facilities. When the County adopted its comprehensive plan it added an objective and a policy that had not been included with the proposed comprehensive plan in the category of objectives and policies for both urban development areas and rural areas in the Future Land Use Element. New Objective I.15 stated: Residential areas shall be protected from uses which cause or result in greater than average noise, hazards or odors. The associated Policy I.15.1 stated: No medical, bio-hazardous, hazardous, or solid waste shall be disposed of by incineration or by any other method which produces air pollution emissions subject to permitting by the Department of Environmental Regulation within Hamilton County, unless the use or facility was permitted and otherwise legally sited and operated as of July 23, 1991. The supporting data and analysis which the County provided the Department with the adopted comprehensive plan did not address Objective I.15 nor Policy I.15.1, with the exception that residential land use projections are described. The adopted plan provided specific information concerning future residential land use. That description was supported by a residential land use need methodology and analysis of future residential land use needed. As with the proposed plan, the adopted plan included a reference to industrial land use within the Future Land Use Element. In both the proposed plan and the adopted plan in Policy 1.3.1 it was stated: Lands classified as industrial consist of areas used for the manufacturing, assembly processing or storage of products. Industrial development may be approved in areas of the County not designated industrial on the Future Land Use Plan upon submission and approval of a development plan which shall include at the least: an industrial site plan; traffic plan; and traffic impact studies; provisions for the construction and maintenance of a wastewater treatment system meeting requirements of the State of Florida for that use; and a submission of a Future Land Use Plan Map amendment to Industrial classification. Industrial uses shall be limited to an intensity of less than or equal to 1.0 floor area ratio. The data and analysis associated with industrial land use which had been provided with the proposed comprehensive plan remained consistent with the adopted comprehensive plan when describing the methodology for identifying projected industrial land use. The comments in the data and analysis supporting the proposed and adopted plans indicated: Projecting the need for additional acreage for industrial use cannot be approached using a methodology similar to those used for residential and commercial Future Land Use needs. This is due to the fact that there is no direct relationship between population and industrial location. The additional future acreages for industrial location are anticipated to occur on a site specific basis as needed at the time industrial activities are proposed. Within the adopted comprehensive plan, Future Land Use Element related to urban development areas and rural areas is found the general industrial land use classification. The general industrial land use designations are located in the central area of the county to the southwest of the City of Jasper along County Road 249. There is an additional limited industrial land use classification within the urban development area and rural area category. It identifies industrial opportunities at interchanges on Interstate 75. At these interchanges, upon submission of a site plan that comports with development standards, with due regard for safety and adequate access, light industrial development is allowed which does not require an air emission permit from the State of Florida. Industrial land use designations as well as other land use designations were based upon an analysis of the amount and character of undeveloped land in the county, reliable population projections and growth patterns anticipated for the area, together with the availability of the public services to accommodate the projected population. The adopted comprehensive plan includes a Future Land Use Map and Map Series found within the Future Land Use Element of the adopted plan which depicts industrial land use. Intervenors' property carries a general industrial classification in the future land use designation in the adopted plan. Intervenors' property is not located on the Interstate 75 corridor and therefore would not be considered for this special industrial land use classification. The North Central Florida Regional Planning Council (the Council) assisted the County in preparing its proposed and adopted plans. The Council staff were engaged in that process as early as 1986. From that point forward the Council staff conducted field surveys relating to land use, compiled data from existing data sources and reviewed population projections and growth patterns in Hamilton County. The Council staff compiled information concerning public facilities, recreational and solid waste facilities, information relating to physical capacity for those facilities and information concerning the financing of capital projects. In anticipation of the requirements set forth in Section 163.3177(6)(a), Florida Statutes, the Council staff conducted field surveys of existing land use to determine the character of undeveloped land in the county. The staff reviewed the population projections of the University of Florida Bureau of Business and Economic Research. These activities were designed to assist the County in analyzing the amount of land necessary to accommodate projected growth and the availability of public services. The Council staff was responsible for preparing the proposed plan statement related to goals, objectives, and policies. The staff also prepared the Future Land Use Plan Map. The documents prepared by the Council staff were subject to review and workshops were held to consider those matters. Modifications were brought about through public comments presented at the workshops. The Council staff prepared an evaluation, appraisal and review report to examine the success of previously adopted comprehensive plans. Following the conduct of workshops the public sessions for plan adoption were held on June 18, and July 23, 1991. As representative for the County, the Council staff invited the Department to send representatives to attend the public hearing sessions. The Department was represented at those sessions. In the public hearings related to the plan adoption, there was considerable public testimony expressing concern about health and environmental impacts involved with the incineration of bio-medical waste. In particular, remarks were made about air emissions of mercury and dioxins and the disposal of ash residue from the incineration process. Documents were also presented by members of the public who opposed waste incineration. One document was from the United States Environmental Protection Agency, entitled Seminar-Medical and Institutional Waste Incineration: Regulations, Management, Technology, Emissions and Operations. Another document was entitled Hazardous Waste News #82, June 20, 1988, identified as a weekly news and resource for citizens fighting toxins. A third document was entitled "Facts" related to definitions within Section 403.703, Florida Statutes and observations from the author of this document concerning Intervenors intended operations of a bio-medical incineration facility in Hamilton County. Finally, there was a document from the Hamilton County School Board calling for a buffer zone between any school in the county and facilities which incinerated or otherwise disposed of substances through incineration or other disposal means which would create air emissions from the destruction of solid waste, hazardous substances, bio-hazardous waste and biological waste as defined within Section 403.703, Florida Statutes. The Hamilton County School Board also expressed a desire to completely prohibit the incineration or other disposal of those substances which were generated outside Hamilton County. The EPA document spoke in terms of the emissions from incinerators as being particulate and gaseous emissions. The particulate emissions being constituted of char and soot and minerals in the form of metals, silicates and salts. The gaseous emissions referred to in the EPA document were constituted of combustible emissions such as hydrocarbons, carbon monoxide, PCDD and PCDF and noncombustible emissions, such as nitrogen oxides, HCLs, hazardous compounds such as POHCs, products of incomplete combustion such as dioxins, and uncondensed volatile metals in excess air. Dr. Ralph Dougherty, an expert in environmental mass spectrometry, analytical chemistry and the chemistry of waste incineration, provided expert testimony concerning the significance of some of the information provided to the County in its public sessions. This testimony was presented at the administrative hearing. Dr. Dougherty did not attend the public hearing associated with the plan adoption. Dr. Dougherty in addressing the waste stream that is created by bio- medical waste described how the incineration process in destroying polyvinyl chloride, PVC plastic, saran wrap and neoprene converted those materials to chlorinated organics such as dioxin. As Dr. Dougherty established, dioxins are very hazardous substances. Kenneth Krantz appeared for the Intervenors at the public sessions for the plan adoption. At that time Basic Energy Corporation was known as TSI Southeast, Inc. (TSI). He provided written information to the county commissioners concerning the TSI bio-medical waste disposal business intended to be located in Hamilton County. TSI took no issue with Objective I.15 which was adopted on July 23, 1991. Intervenors proposed different text for policy I.15.1 and requested adoption of two additional policies I.15.2 and I.15.3 which would place some restrictions on solid waste disposal but would allow an opportunity for operating the TSI facility in the county. Information provided by Krantz in the public sessions indicated that TSI intended to operate a business to incinerate solid, bio-medical and solid municipal waste, together with a waste recycling area, Pelletizer area and turbine-generator area. Krantz addressed the county commissioners concerning county building permit information about the facility, permitting by the St. Johns River Water Management District and the State of Florida, Department of Environmental Regulation. Information was provided concerning square footage for buildings within the overall TSI facility. Information was provided by TSI concerning the intended pollution control systems as being constituted of fabric filters and dry-lime injection systems, together with a detailed description of pending permit applications before the Department of Environmental Regulation for additional incineration units. Information provided by TSI addressed the expected constituents of the air emissions to include carbon monoxide, volatile organic compounds, nitrogen oxides, organics such as dioxide, sulphur dioxide, hydrogen chloride and particulate matter. A site location map and schematic showing the flow within the waste stream was also provided. TSI also provided information at the public sessions about the Intervenors anticipated emissions rates for two previously permitted units and the third and fourth units that were being considered by the Department of Environmental Regulation. This data about emission rates included a comprehensive listing of anticipated emissions by pollutant type to include projected measurements of omissions for units one and two which would deal with medical waste combustion and units three and four which would deal with medical waste combustion and possibly refuse-derived fuel (RDF). As commented on by members of the public who appeared at the public sessions for adopting the plan, information provided by the Intervenors verified that significant amounts of pollutants would be discharged into the air through Intervenors' operations. TSI provided information concerning the modeling that was done to measure concentration levels for the expected pollutants. Information was provided concerning the incineration process and the manner in which calculations were made concerning expected emissions levels. Information was provided concerning anticipated annual and short term emission rates for the four units intended to be operated by the TSI. The technical information about the intended TSI facility was through documents that appeared to be from an engineering consulting firm. All information provided in the public sessions that has been described was properly available to the county commissioners when adopting the plan. The information provided at the public sessions which has been described was not presented to the Department with the adopted plan. As stated, on July 30, 1991, the County submitted its plan to the Department to determine if the adopted plan was in compliance with the requirements of law. See Section 163.3184(8), Florida Statutes (1991). On September 12, 1991, DCA issued a notice of intent to find the adopted plan, not "in compliance". See Section 163.3184(10), Florida Statutes (1991). Pursuant to that provision, DCA filed a petition with the Division of Administrative Hearings setting forth the reasons for its decision to find the adopted plan not "in compliance". That petition was filed on September 23, 1991. The DCA took no issue with Policies I.15.1 and V.2.13. On February 20, 1992, Intervenors petitioned to intervene in the not "in compliance" case. As identified in the statement of issues, the Intervenors were and continue to be opposed to the adoption of Policies I.15.1 and V.2.13. On March 17, 1992, an order was entered which granted the Intervenors leave to intervene. Intervenors own property in Hamilton County. As contemplated by Section 163.3184(16), Florida Statutes (1993), DCA and the County engaged in settlement discussions. This culminated in a stipulated settlement agreement executed by DCA and County on November 24, 1993. The stipulated settlement agreement is referred to in the statute as a compliance agreement. Intervenors did not join in the settlement. On January 18, 1994, the County adopted the remedial amendments, referred to in the statute as plan amendments pursuant to a compliance agreement called for by the compliance agreement. The remedial plan amendments were submitted to the Department for consideration. On March 10, 1994, DCA issued a cumulative notice of intent addressing the compliance agreement amendments and the plan. DCA gave notice that it attended to find the plan and remedial comprehensive plan amendments/compliance agreement amendments "in compliance" with Sections 163.3184 and 163.3187, Florida Statutes. Notwithstanding that the Intervenors did not submit further pleadings within 21 days of the publication of the cumulative notice of intent, the Intervenors were allowed to proceed with their challenge to the plan that was not the subject of the compliance agreement leading to the compliance agreement amendments.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered finding the Hamilton County comprehensive plan to be "in compliance" with the exception that Policy V.2.13 is only "in compliance" in its latter sentence, the remaining language in Policy V.2.13 is not "in compliance". DONE and ENTERED this 21st day of April, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 April, 1995. APPENDIX "A" CASE NO. 91-6038GM The following discussion is given concerning the proposed fact finding by the parties: Intervenors' Facts: Paragraph 1 is subordinate to facts found. The first sentence to Paragraph 2 is contrary to facts found. The remaining sentence is subordinate to facts found. Paragraph 3 is rejected in its suggestion that there is a perpetual ban on bio-hazardous waste incineration. It is otherwise not necessary to the resolution of the dispute. Intervenors' Facts: Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 is not relevant. Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found with the exception that the date of adoption was January 18, 1994. Paragraphs 15 through 22 are subordinate to facts found. Paragraph 23 is not relevant. Paragraph 24 is subordinate to facts found. Paragraph 25 constitutes legal argument. Paragraph 26 is subordinate to facts found. Paragraphs 27 through 31 are not necessary to the resolution of the dispute. Paragraphs 32 through 38 are subordinate to facts found. Paragraphs 39 and 40 are not necessary to the resolution of the dispute. Paragraph 41 is rejected to the extent that it is suggested that it constitutes agency policy. Paragraphs 42 through the first phrase in 49 are subordinate to facts found. The latter phrase in Paragraph 49 is not necessary to the resolution of the dispute. Paragraphs 50 through 58 are subordinate to facts found. Paragraph 59 constitutes legal argument. Paragraphs 60 through 75 are subordinate to facts found. Paragraphs 76 through 82 are rejected as not constituting allowable analysis of data presented in support of the plan adoption. Paragraphs 83 and 84 are not necessary to the resolution of the dispute. Paragraph 85 is subordinate to facts found. Paragraph 86 is not necessary to the resolution of the dispute. Paragraphs 87 through 91 are rejected to the extent that it is suggested that some lesser standard is involved with consideration of data for optional plan elements as opposed to mandatory plan elements. See Section 163.3184(8), Florida Statutes (1991) and Section 120.57(1)(b)15, Florida Statutes (1993). Paragraph 92 is acknowledged but did not form the basis for fact finding in the recommended order. Paragraph 93 is rejected as intended to interpret Policy I.15.1 as an absolute prohibition against waste incineration in the County. Paragraph 94 constitutes legal argument. Paragraphs 95 through 102 are not relevant. Paragraphs 103 through 105 are not necessary to the resolution of the dispute. Paragraphs 106 through 108 are subordinate to facts found with the exception of the rejection of Policy V.2.13 in part. COPIES FURNISHED: David L. Jordan, Esquire Terrell L. Arline, Esquire Suzanne Schmith, Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 John H. McCormick, Esquire Post Office Box O Jasper, FL 32052 William L. Hyde, Esquire Gunster, Yoakley, Valdes-Fauli and Stewart, P.A. 515 North Adams Street Tallahassee, FL 32301 Donald J. Schutz, Esquire Suite 415 535 Central Avenue St. Petersburg, FL 33701 Linda L. Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issues in this case are (1) whether the City of Panama City's (the City) Small Scale Comprehensive Plan Amendment No. 04-20S adopted by Ordinance No. 1985 (the Plan Amendment) is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and (2) whether the petition challenging the Plan Amendment should be dismissed as untimely.
Findings Of Fact The Parties Robert E. Moore owns a home and resides at 1310 Kristanna Drive, Panama City, Florida. The northwestern property line of Mr. Moore's home is adjacent to the northeastern corner of the Property. JE 7; PE 98-B at RM.2 There is an approximate 100-foot-wide Bay County maintained canal or drainage ditch (canal) that forms the northern boundary of the Property, see Endnote 1 and PE 50 at 7, which runs in an east-to-west direction at the northern portion of his home. This canal eventually leads to North Bay to the west.3 Goose Bayou is located south of the Property. Mr. Moore taught respiratory care at Gulf Coast Community College for approximately 23 years and is retired. His residence was affected by a hurricane which passed through the area in September 2004. He noticed water appearing half-way up his driveway, which is not on the canal. He is concerned with the placement of additional homes in this area in light of his experience with the water level after the recent storm event. (Generally, Mr. Moore stated that there is a two- foot difference between low and high tide in this area. T 133, 137.) Mr. Moore, as well as the other Petitioners, made oral and written comments to the City Commission during the Plan Amendment adoption hearings. See City's Unilateral Pre-Hearing Stipulation at 5, paragraph E.4.; T 213. The St. Andrews Bay Resource Management Association (RMA) was established in 1986 and is a citizen's organization devoted to the preservation of the quality of St. Andrews Bay and its surrounding ecosystems. T 194. (St. Andrews Bay is a larger body of water which includes North and West Bay and Goose Bayou. See generally JE 12, Map 1.) The RMA has approximately 100 members. The RMA uses, but does not own, an office on the Panama City Marine Institute campus located within the City. The RMA occasionally conducts seminars or conferences and offers several programs for citizens, e.g., sea turtle nest watch, a water sampling program (Baywatch), and a sea grass watch program. The RMA meets every month except during the summer. T 195-196. The RMA opposes the Plan Amendment, in part, because of concerns with the effect of development on what Ms. Shaffer characterized as the "pine islands." Linda Anne Yori owns and resides in a house at 908 Ashwood Circle, Panama City, Florida, which is "just off Kristanna" Drive and to the east. See PE 98-C at the blue X. She teaches middle school science at a local public school. She has observed the Property, and generally described the Property, and vacant property to the north, as "upland hammock with salt marsh." T 209. In general, Ms. Yori opposes the Plan Amendment because she "believe[d] the environmental impact would be too great." Mary Rose Smith owns and resides in a house on Ashwood Circle, Panama City, Florida, two houses away from Ms. Yori's residence. Ms. Smith regularly jogs throughout the neighborhood. She believed that there are approximately 400 homes in Candlewick Acres and six vacant lots remaining. T 214- 215. As a result of recent hurricanes in the area, she observed flooding approximately half-a-mile upland along Kristanna Drive from the west-end to the east (half a mile to the turn off to Ashwood). PE 98-D at the blue 1/2 designation and blue line. While she cannot say for certain where the water came from, she believed the water "came from the bay or the bayou." T 220. The Bay County Audubon Society (BCAS) conducts membership and board meetings within the City limits and also owns a piece of property in the City. BCAS has approximately 400 members. Members live within the City. BCAS is concerned with the environment and with "the density of the proposed development" and "access to the pine islands." T 409-411. The City is the local government unit responsible for approving the Plan Amendment at issue in this proceeding. § 163.3187(1)(c), Fla. Stat. The Application, Review, and Adoption of the Plan Amendment On or about May 11, 2004, James H. Slonina, P.E., the president of Panhandle Engineering, Inc., filed an application on behalf of Robert H. and Barbara B. Hansman, requesting the City to annex "approximately 9.9 acres including lots, paved roadways and bridged drives" and further requested a land use designation to allow proposed residential development." The Property, see Endnote 1, is designated on a Bay County parcel map. A flood zone map is also included, but lacks clarity. The Property is vacant. JE 13. The purpose of the annexation and request for land use designation "is to accommodate the development of a 13+/- lot single-family residential waterfront development adjacent to North Shore Subdivisions." The application also stated: To support the residential home sites, there are adequate adjacent public roadways and utilities. Due to the unique physical configuration of the property, traditional RLD lot standards may not [sic] applicable. While we would prefer to pursue an RLD-1 designation, the application is submitted contingent upon confirmation of an appropriate land use designation and an approval of the proposed project. If another course of action is available, which would allow for the development of 13+/- single-family residential lots on 9.9 acres, please advise. JE 13. (It is represented throughout this record that the land use designation is requested for approximately 6.8 acres rather that approximately 9.9 acres. See, e.g., JE 7 at 1; JE 11 at 12-13.) The application was reviewed, in part, by Mr. Thomasson. JE 7. The staff report4 dated July 30, 2004, stated that the request is to amend the City's FLUM from Conservation (as previously designated by Bay County) to RLD with a Zoning District classification of RLD-1. (The staff report referred to several permitted uses under RLD-1. JE 7 at 2. The permitted uses for RLD-1 are those contained in the City's "Comprehensive Planning and Land Development Regulation Code (LDRC)" at section 4-6.1.2.a. JE 4 at IV:8-9. However, the propriety of the RLD-1 Zoning District classification for the Property is not at issue in this proceeding. T 266.) The staff report also stated that the Property "is currently zoned conservation, abuts property to the North that is designated conservation Land Use category in the County and is just North of an existing Special Conservation Treatment Zone," which is indicated on a map on page 1 of the staff report. JE 7 at 1. The staff report stated that "[w]ater and sewer infrastructure and other urban services are available to this property." See T 286-287, 301-303, 307-308; JE 7 at 1. Under the background section, it is stated that "[t]he property has been seen as environmentally significant and has been the object of an effort to purchase for perpetual protection by a local land trust organization. It is adjacent to an existing development to the East." Id. The Plan provides that an RLD land use district "is intended to provide areas for the preservation of development of low-density neighborhoods consisting of single-family dwelling units on individual lots" with a density of "[n]o more than five dwelling units per acre." The allowed intensity is "[n]o more than 40% lot coverage as determined by dividing the impervious areas by the gross area of the site or lot." JE 3 at 1-2. The staff report contained findings of fact with citations to the Plan, including the Future Land Use Element, the Coastal Management Element, and the Conservation Element. References to the LDRC are also provided. See also T 285-311, 315-317, 320-321; JE 7 at 2-3. Thereafter, specific findings are made: Staff finds that this property, as a part of the St. Andrews estuary, serves as a breeding, nursery, feeding and refuge are for numerous marine creatures, birds and upland wildlife. The three pine and oak hammacks [sic] are a few of a rare estuarian resource. The marsh throughout the area serves as home for seagrass and other marine organisms that are integral with the biodiversity of the estuary. There also exists a [sic] archaeological sites [sic] consisting of an ancient Indian midden that has already been classified by the Director of the Florida State Division of Historical Resources as deservant [sic] of mitigation and potentially eligible for the National Historic Registry (see attached documentation). The site overall has a biotic community of nearly 90% of it [sic] total area. Staff findings are that this proposed Land Use Amendment is inconsistent with the above listed mandates of the Comp Plan. Staff also finds that the proposed Land Use is inconsistent with the LDR Code, in that it is not in harmony with the Comp Plan (Subsection 2-5.5.6.e. above), as well as the requirements of the environmental protection standards of Section 5-5. This decision hinges on the whether the City intends to enforce it's [sic] environmental protection standards of the Comp Plan and the LDR Code and if the site is seen as environmentally significant. JE 7 at 4 (italics in original). Ultimately, staff recommended approval only with the following conditions: 1.) that the fullness of the subject property be designated as a Conservation Special Treatment Zone [CSTZ][5] and that the pine and oak hammacks [sic](as referred to as "Pine Islands" in the Bay County Comp Plan) are prohibited from being developed; and 2.) that the area of the subject property that is beyond the mean high tide of the mainland portion, which specifically means the marshes/wetlands and the oak and pine hammacks [sic], shall be placed in a conservation easement and dedicated to either the City, or a third-party land trust or conservancy. JE 7 at 4. (Mr. Hammons, the City Manager, disagreed with the staff report, in part, because there was no data to support several findings. T 119-124.) On August 9, 2004, the Planning Board of Panama City met in regular session to consider the application. The request was to approve a small scale land use amendment to the FLUM of the Plan from Conservation (under the Bay County Comprehensive Plan) to RLD with a zoning classification of RLD-1 for the Property. JE 11 at 2. But see Finding of Fact 15. Mr. Fred Webb and Dr. Frasier Bingham were present on behalf of the applicant. Mr. Webb advised that the Bingham's and the Webb's owned the property which consisted of approximately 6.5 acres of uplands. But see Finding of Fact 29 regarding the ownership of the Property. In part, Mr. Webb stated that the grass beds would not be impacted and that there was no legitimate environmental complaint. Dr. Bingham stated that he is an ecologist, specializing in shallow water ecology. JE 11 at 3. He said his family had purchased the upland property in 1948 and the submerged land in the 1960s. Beginning in 1991, Dr. Bingham stated he tried to get the government to purchase the property, but to no avail. He also recounted attempts to obtain permits from DEP and the United States Army Corps of Engineers (Corps). See, e.g., PE 60, 63-64.6 He believed that the bridge problem, identified by the Corps had been solved. JE 11 at 3 and 13. (There is no persuasive evidence in this record that the Corps has approved any permits for development of the Property.) Mr. Webb stated that all maintenance to the bridges and other utilities would be the responsibility of the association (for the developed Property) and not the City and that the City would only be responsible for police and fire. Id. at 4. Mr. Thomasson addressed the Planning Board. JE 11 at The staff report previously mentioned is incorporated in the minutes. Staff felt that the CSTZ designation would be the most appropriate designation due to the environmental issues and that the RLD-1 designation would be the least intense land use available under the Plan. Board member Pritchard inquired whether the application was incomplete "as it doesn't address the environmental issues." Mr. Thomasson stated the applicant did not believe there would be any environmental impact, while staff believed the property to be environmentally significant. JE 11 at 8. Dr. Bingham again addressed the Planning Board to refute the staff's findings of fact. Dr. Bingham said that "the wetlands would not be impacted, the grass beds would not be impacted, and the stormwater runoff already goes into the grass beds, which are, in his opinion, fine grass beds" and that "that 13 houses would not have any significant impact." He indicated that soils were not at issue and that the "property is sandy, not special." Id. at 9. Mr. Webb indicated that "they had evaluated the environmental aspects and added the raised bridges, swales, etc." JE 11 at 9. Numerous individuals spoke in opposition to the request. Apparently, by a show of hands "a large majority of those present were in opposition to the request." JE 11 at 12. It appears that two persons spoke in favor of the request. Id. at 9-11. Mr. Webb confirmed that the application requested approval of the land use designation and annexation for 6.8 acres. JE 11 at 12. He also advised that a limited liability corporation owned the 6.8 acres, while there are different owners of other parcels. Mr. Webb indicated that "only the uplands on the islands were being annexed," although "he was not sure the properties were 'islands' in legal terms." Id. at 13. Mr. Webb indicated that he was willing to indemnify the City against any legal expenses arising from this request. Id. The requested land use change was approved by a vote of three to two. Id. at 14. On September 28, 2004, the City Commission considered Ordinance No. 1985 pertaining to the requested land use designation change and Ordinance No. 1995 pertaining to the annexation of the Property. These Ordinances were read by title only as a first reading. JE 10 at 293-294. During this meeting, the minutes (JE 10) reflect that Mr. Webb stated that they would only be developing the upland islands and proposed to use bridges, which he says "the environmental regulatory community has considered to have almost no environmental impact. He said that the addition of thirteen single family residential homes to an area that has seven hundred homes will not materially affect level of service." JE 10 at 289. Several of the people who appeared before the Planning Board also appeared opposing the application for annexation and land use designation change. JE 10 at 290. Mr. Martin Jacobson, Planning and Zoning Manager for Bay County filed a formal letter of objection to the annexation. Id. Mr. Fred Beauchemin opposed the annexation and responded to eleven items which were discussed by Mr. Webb and Dr. Bingham during the Planning Board meeting, including representations of impacts to grass beds, wildlife resources, and soils. JE 10 at 290-292. Mr. Webb continued to feel that there would not be any destruction of the marshes. Id. at 292. Dr. Bingham again noted that he is a shallow water marine ecologist and felt that he was informed about the environmental situation on the Property. Id. at 293. After brief discussion by some of the Commissioners, Ordinance Nos. 1985 and 1995 were approved by a vote of three to two. JE 10 at 293-294. By a letter dated November 9, 2004, Daniel Shaw, A.I.C.P., memorialized the October 5, 2004, Bay County Commission's unanimous decision to contest the potential annexation of and land use change to the Property, referring to several provisions of the Bay County Comprehensive Plan. T 228; PE 69. Mr. Shaw opined that "[c]learly, development proposed for the annexed Pine Islands violates the County's Comprehensive Plan." PE 69 at 2. He further stated: What's more the proposed annexation also violates the City's Comprehensive Plan. City Policy 5-5.2, 5-5.3 related to preservation of Environmentally Significant Resources would prohibit the proposed development. The property is a part of the St. Andrews estuary, and serves as a breeding/refuge area for numerous marine creatures, birds and wildlife. The three pine and oak hammocks are a truly rare estuarine resource for Bay County and for the State of Florida. The marshlands contain valuable sea grass beds and are home to numerous marine creatures, which are integral to the biodiversity of the estuary. Finally, the property contains valuable archeological sites, consisting of ancient Indian middens that are classified by the State Division of Historical resources, and potentially eligible for the National Historic Register. I would concur with staff's memorandum of August 9, 2004, which cites numerous other examples of where the development would violate the City's plan. PE 69 at 2 (emphasis in original). Mr. Shaw also stated that the Property is located in the coastal high hazard area, within a "V" zone for flood regulations.7 He stated that "[t]hese designations argue for prohibiting development for public safety and infrastructure investment purposes." Again, Mr. Shaw stated that Bay County opposed the potential annexation and subsequent land use reclassification. PE 69 at 3. Mr. Shaw also testified during the final hearing and reaffirmed his prior position. T 232-245. Mr. Shaw stated that the Property, prior to annexation by the City, was designated Conservation under the Bay County Comprehensive Plan, which allows for limited residential use and the preservation of pine islands (an outright prohibition).8 He was not qualified, however, to make a determination whether any portion of the Property is a pine island. T 247. Mr. Shaw thinks that Bay County allows up to 15 units per acre in the coastal high hazard area. T 254. On November 9, 2004, the City Commission met and considered a final reading of Ordinance Nos. 1985 and 1995. Several people appeared opposing both ordinances including Mr. Moore, Ms. Smith, Ms. Yori, and others. JE 8 at 3-14; JE 9 at 3-5. Mr. Webb again addressed the City Commission and stated, in part, that "nothing in the marsh would be touched." He also indicated that he would fully indemnify the City in the event of a lawsuit. JE 8 at 14-21; JE 9 at 5. Dr. Bingham also addressed the Commission. JE 8 at He stated that he has designed an environmentally friendly community of 13 home sites. He indicated that he had a Ph.D. in shallow water marine ecology and attended Florida State University and the University of Miami. He said that he was thoroughly familiar with the Panama City area and had worked with a large list of groups as an ecologist. He reiterated that the homes sites will take up 6.8 acres and will be entirely uplands and no marshes or swamps. He said that he is trying to use one fifth of the property that he owns and "there are no wetlands involved in this particular operation that will be damaged." JE 8 at 23. He also indicated that there will be raised bridges constructed on the Property, and according to him, were suggested by the Corps. Id. After brief comments by several Commissioners, the Commission approved the annexation and land use designation change by a vote of three to two. JE 8 at 26-27, 30-31. Toward the end of the November 9, 2004, hearing, the City Attorney, Rowlett Bryant, advised that the minutes of the September 28, 2004, Commission meeting would be included with the minutes of the November 9, 2004, public hearing. In other words, the November 9, 2004, Commission meeting was the public hearing held on the application for the annexation and the land use designation change. JE 8 at 27-30. Mr. Bryant also noted that the Ordinance No. 1985, related to the land use designation, would be RLD-1 and that the prior reference to Special Treatment Conservation Zone in the title of Ordinance No. 1985, considered on September 28, 2004, was a recommendation of staff and was deleted from Ordinance No. 1985, which was approved by the City Commission on November 9, 2004. JE 8 at 31-32. Ordinance No. 1985, in fact, changed the land use designation of the Property (approximately 6.8 acres) "from Conservation (a Bay County Land Use designation) to Residential- Low Density-1 as described in Small Scale Amendment 04-S20." JE 1 at 2. However, Petitioners and the City agree that "[t]he city assigned a future land use map designation to the parcel of Residential Low Density in Ordinance No. 1985." See T 11, lines 10-23; Petitioners' Prehearing Stipulation at 2, IV.2. Data and Analysis As more fully discussed in the Conclusions of Law, "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; the need for redevelopment, including the renewal of blighted areas and the elimination of non-conforming uses which are inconsistent with the character of the community; the capability of uses on lands adjacent to or closely approximate to military installations; and, in rural communities, the need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy." § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.006(2) provides for "land use analysis requirements" and requires, in part, that the future land use element "be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2) F.A.C." Subsection 9J-5.006(2)(b) requires "[a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available: 1. Gross vacant or undeveloped land area, as indicated in paragraph (1)(b); 2. Soils; 3. Topography; 4. Natural resources; and 5. Historic resources." Further, "all goals, objectives, policies, standards, finding and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a)(emphasis added). "Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data shall be the best available existing data, unless the local government desires original data or special studies." Fla. Admin. Code R. 9J-5.005(2)(c). Petitioners question whether the record contains relevant and appropriate data, which was existing and available on or before November 9, 2004, to support the Plan Amendment. Petitioners further question whether the analysis of that data is adequate. The application, JE 13, requested approval of annexation of and a change in the land use designation for, as amended, approximately 6.8 acres. Aside from identifying the parcel in question, in relation to Goose Bayou and the subdivision to the east, the application does not contain adequate data and analysis to support the Plan Amendment. Mr. Slonina, a professional engineer and expert in civil engineering, testified during the final hearing as to the due diligence he and his firm performed in support of filing the application with the City. T 424. Mr. Slonina has been on the Property many times. T 456. As part of the due diligence, Mr. Slonina analyzed the area proposed for development on the Property, which are the upland areas, and, in part, stated that these areas are primarily free draining sands and have fairly high percolation rates. T 425, 453. He also characterized upland areas as fairly clean sands and satisfactory for development in this area based on his experience. He also examined the upland and wetland soils to determine suitability for a "post and beam timbered bridge system" that would be pile supported over the wetlands bridging upland areas. He opined that the soils on the uplands were nothing unique and were suitable for low density residential and suitable to support the bridge system he described. T 428, 442, 458-459. See also P 50, Attachment A. Regarding utilities which might be available to the Property, during the due diligence phase, he identified, from utility maps, the location of the closest water and sewer which could serve the Property, adjacent to the Property to the east. He also analyzed the ability of fire protection to be provided to the Property and concluded that it was feasible. T 428-432, 460-461. See also JE 7 at 1 regarding "utility and other urban services availability" and P 50 at 14-16 for a discussion of "utilities." Mr. Slonina also opined that a stormwater system could reasonably be designed for the Property and that it was feasible to design a stormwater system that would capture stormwater runoff before it went into the bayou. T 432-435. Mr. Slonina examined flood zone information and determined that the Property was "very typical" and that the flood zone information available would not preclude residential development on the Property. T 434-435, 450. But see Endnote 7. From a traffic concurrency standpoint, he examined traffic engineering data on trip generation for 13 single-family homes and determined that there was adequate capacity for that additional loading on "the only roadway that connects to the [P]roperty." His traffic impact analysis was limited "through the residential streets." T 435-436, 439-441. Mark O. Friedemann, is the executive vice-president at the Phoenix Environmental Group, Inc., an environmental consulting firm. T 466. Mr. Friedemann was retained on or about January 7, 2005, by the City's counsel for the purpose of "doing a basic assessment of the property and whether it was suitable for some type of development, residential in particular." T 474-475. Prior to conducting a survey of the Property, aerial photographs, data from the Florida Natural Areas Inventory, and various maps were reviewed. Id. Mr. Friedemann and an assistant conducted a field survey of the Property on January 12, 2005. They collected basic water quality data, observed wildlife, conducted several soil observations pits, looked for scat, and examined the vegetative community on the Property. T 476. For the purpose of the survey, the Property was divided into areas 1 through 4, which are labeled on CE 5, Figure 2. T 478. These upland areas were the major focus of the assessment along with the interior (wetland/marsh) areas. T 478, 565. CE 5 at 2, Figure 2. Mr. Friedemann and his assistant arrived on the Property at approximately 9:00 am on January 12, 2005, during low tide. They left the Property as the tide was starting to return. T 517, 532, 548. Area one is a rectangular portion of the Property, which runs north to south and forms most of the eastern boundary of the Property and is adjacent to Candlewick Acres. Area two is another upland area which is in the northwest portion of the Property and west of area one. Area three is in the southwest portion of the Property and southwest of area two. Area four is a small upland portion, which is almost due south of area one in the southeastern portion of the Property. CE 5 at 2, Figure 2; see also Endnote 6. Mr. Friedemann accessed area two from area one by walking along a path/spoil pile, which runs east to west and forms part of the northern boundary of the Property (the approximately 100 foot canal is north of and adjacent to the path/spoil pile). He walked to area three by stepping across a small rivulet of no more than a foot in width. He walked to area four from area three, stepping over another small tidal- influenced rivulet that passed between areas three and four. He approached area one from area four walking across "a rather high area." Mr. Friedemann "did not get the impression that area two was surrounded" by wetlands, salt marsh, or tidal mud flats. T 479-481, 500, 517, 556-557. He stated that area three would be surrounded, but was unsure about area four. T 556-559. Some of the areas photographed would be potentially inundated during high tide. T 521-525. Mr. Friedemann's report also contained, in part: water quality data taken on January 12, 2005; and a list of species seen on the same date; a recent undated aerial of the Property and surrounding area, downloaded from the DEP website, which was also magnified; and several aerials (dated 1953, 1962, 1967, 1974, 1978, and 1986) of the Property including the surrounding areas. Mr. Friedemann opined, based on his review of aerials, that there may have been a timber operation ongoing on the Property in the past although he would not hazard a guess. T 540. The report also included several photographs taken of the four areas, during the site visit on January 12, 2005. CE 5 at x-xxii. Although he did not "review any set of plans," or have any opinion regarding any specific development proposal, Mr. Friedemann opined that based on his observations in the field, "there is a viable project that could be built on this parcel."9 T 482, 501-502, 511, 520. Mr. Friedemann provided an analysis of the Property by and through his testimony regarding photographs taken of the Property during his site visit. From a biological or ecological perspective, he did not observe anything on the Property which would preclude residential development. He further opined that what he observed was not unique in the panhandle of Florida. T 501-502. Mr. Friedemann did not conduct a wetland delineation of the Property. T 556. However, the record contains an infrared Conceptual Site Plan dated October 22, 2002, indicating vacant land to the north of the Property, and residential areas to the east of the Property and east of the vacant parcels to the north. This particular site plan provided for the approximate wetland boundaries of the Property identified as south parcel (4). PE 98-D and PE 50 at Exhibit 1. Mr. Friedemann indicated that he had not observed the Property during a hurricane, during periods of high wind, or during periods of a combination of high wind and high tide. He agreed that the tides in the United States can be lower during the winter than they are during the spring and that the highest tides may be experienced during the spring called neap tides. T 532-533. Mr. Friedemann was also referred to a December 30, 2004, document apparently prepared by Panhandle Engineering, Inc., sheet number 2 of 4, CE 16, which delineated 13 lots. T 533. See Endnote 6. (City Exhibit 16 was admitted into evidence as an authentic document; however, there was no testimony regarding the preparation of this document. T 535-537.) Comparing sheet 2 of 4 with Figure two of CE 5, area two is depicted as being surrounded by rush marsh and connected to area one and area three by drawn-in bridges. Compare PE 50, Attachment E, Sheet 1 of 2, dated July 31, 1998, depicting the Property with 13 lots configured, interspersed with a "conservation area" designation and Attachment A, Figure 4., Project Base Map, depicting upland areas on the Property, interspersed with a "marsh" designation with PE 98-D south parcel (4) and "approximate wetland boundary. See also Endnote Mr. Friedemann stated that the indication of rush marsh on sheet number 2 of 4 did not comport with his observations of the Property during his site visit. He was unaware of this drawing. T 534-538. Gail Easley, A.I.C.P., an expert in urban and regional planning, opined that the Plan Amendment was consistent with various provisions of the City's Plan, the State Comprehensive Plan, and the West Florida Regional Strategic Policy Plan. She also opined the Plan Amendment was supported by data and analysis regarding the suitability of the Property for the RLD land use designation. In support, Ms. Easley stated in part: Understanding that the amendment is not really permitting the use, but understanding that the amendment establishes the uses that are allowed as I testified earlier, the suitability data that is available in addition to the data and analysis here in the Comprehensive Plan includes the information from Panhandle Engineering about, more specifically about the availability of facilities and services and the suitability of soils for use of residential low density, as well as the analysis contained in Mr. Friedemann's report regarding environmental issues and the suitability of this site for residential low density. So I found plenty of evaluation of suitability. T 586. See also T 610-611. Ms. Easley also opined that the Plan Amendment does not threaten coastal and natural resources in violation of Florida Administrative Code Rules 9J-5.006, 9J-5.012, and 9J- 5.013, and Sections 163.3177 and 163.3178, Florida Statutes, because she considered the data and analysis in the Plan, "as well as the suitability and capability [sic] analysis that were submitted by Panhandle Engineering and Mr. Friedemann demonstrated that there was not a violation of these provisions." T 617. Ms. Easley also stated that there was adequate data to support a need for residential (RLD) development on the Property. See, e.g., T 584-585, 621-622, 629-630, 632-634. See also JE 3 at Future Land Use Data, 1-1 - 1-10. During cross-examination, Ms. Easley was asked to identify the particular Panhandle Engineering report which she reviewed to support her opinion. The report is not in evidence. However, Ms. Easley stated: "It was a report that they prepared that addressed issues of suitability of the site with regard to the availability of water, the availability of sewer, the capacity for water and sewer, soil conditions on the site, and traffic situations on the site. I'm sorry, I do not recall the date of that particular suitability analysis, but it was prepared by Panhandle Engineering, and I reviewed it as a part of my analysis." T 626. Ms. Easley was also asked to provide the source of her data and analysis about environmental conditions on the site and she replied: "Two places, there is information in the City's data and analysis with regard to the vacant land analysis, as well as general environmental conditions in or around the City, I reviewed that data and analysis that I mentioned earlier. I also saw information specific to this parcel from Mr. Friedemann's report." T 627. Ms. Easley indicated that there was no specific data and analysis contained in the City's Plan about the Property, although the Plan referenced areas adjacent to the City. T 628. Ms. Easley reiterated that natural resources are considered during the plan amendment process. It also occurs during permitting. T 642. She again stated: "The suitability analysis was contained in two different reports. As I testified earlier, Mr. Slonina's report from Panhandle Engineering addressed soils and soil suitability. And Mr. Friedemann's report looked at other kinds of environmental issues. I reviewed both of those reports and determined that suitability analysis had been preformed to support the plan amendment." T 643. According to Ms. Easley, if there were environmental reasons creating an inconsistency with Rule 9J-5, then such reasons could serve as a basis for denial. T 643. (Ms. Easley also opined that a land use change to the FLUM "is an assignment of a land use category and the associated density and intensity, it is not a development activity." See T 587, 651.) Mark Llewellyn, P.E., is the president of Genesis Group. In October 2002, Genesis Group completed a planning and engineering analysis (Genesis Report)10 for Chandler and Associates, who, in turn, had a contract with the DEP to prepare an appraisal report for the Goose Bayou Marsh Property.11 The Goose Bayou Marsh Property included four parcels, including the south parcel (4), which is the Property in question, two north parcels (2 and 3), and the middle parcel (1), which is north and northeast of and adjacent (the west one- third) to the Property. All the parcels are vacant. See PE 98- D, which also appears at PE 50, Exhibit 1. Mr. Llewellyn identified three peninsular islands on the Property (south parcel 4)(PE 98-D at the blue X's), which roughly correspond with areas one and two in Mr. Friedemann's report at CE 5 at 2, Figure 2. T 160-161. See also Endnote 6. The two eastern peninsular islands (area one) are connected to the upland to the east, Candlewick Acres. The third peninsular island, located in the northwest corner of the Property, can be accessed, according to Mr. Llewellyn, by a berm or other geographical feature to the north of the Property and south of the drainage canal. Id. See also T 397. There is one larger upland island and a smaller upland island toward the southwest and southern portions of the Property, which appear to be surrounded by wetlands, waters of the state, salt marsh, or tidal mud flats. T 160-164. Each peninsular island and upland island is less than 20 acres. Mr. Llewellyn's analysis is consistent with the approximate wetland boundaries identified in the Conceptual Site Plan, PE 98-D. Mr. Llewellyn opined that the Property could be developed as a single-family development without having an impact on the Property if it is designed and maintained properly. T 157, 172. See also Endnote 6. The Genesis Report provided an analysis of the four parcels. Apparently the south parcel (4), the Property, contained approximately 16.2 acres as follows: wetlands 9.8+/- acres; upland islands 3.5+/- acres; peninsula uplands 2.9+/- acres; or 6.4+/- acres of total uplands. T 163; PE 50 at 12. Parcels 1-4 are analyzed in light of several factors, including but not limited, to the Bay County Future Land Use and Comprehensive Plan. The following is an analysis of the Bay County Future Land Use and Comprehensive Plan as applied to the north parcels (2 and 3): The Bay County Comprehensive Management Plan identifies the North Parcel's Future Land Use Designation as Conservation. The purpose of this land use is to identify public and private lands held for conservation of natural features. Allowable uses for this designation are natural resource protection, flood control, wildlife habitat protection, passive of recreation, silviculture and residential densities up to 2DU/acre. Commercial development is prohibited for properties with this land use designation. Additionally, the upland islands located on these parcels fit the definition for "Pine Islands" as defined in the Bay County Comprehensive Plan. A Pine Island is defined as a small upland area generally 20 acres or less, usually characterized by typical pine flatwood vegetation, which are surrounded by waters of the State, wetlands, salt marsh, or tidal mud flats. The Bay County Comprehensive Plan prohibits development on any "Pine Island". This means that it will be extremely difficult to develop the upland areas located on this parcel. PE 50 at 2. See also PE 50 at 2 (II.B.) and 13 (IV.B.) regarding the Panama City Future Land Use. (The Genesis Report was prepared approximately two years prior to the City's annexation of the Property. The City did not annex the vacant land to the north (parcels 1-3), which is part of the subject of the Genesis Report.) Regarding the analysis of parcels 1, and 4, the Property, and referring to the Bay County Future Land Use and Comprehensive Plan, it is noted that "[t]he same issues apply to this parcel." PE 50 at 7 and 13. The Genesis Report discussed wetlands on the Property: The wetlands within the property consist of estuarine salt marshes, which are connected to Goose Bayou and West Bay. According to an environmental assessment prepared by Biological Research Associates (BRA) the marshes are tidally influenced and dominated by black rush. Other species include seaside goldenrod, seashore dropseed grass, sea purslane, glasswort, salt grass, marsh hay cord grass, sea lavender, Chinese tallow, saw grass, cork wood, and saltbrush. Additionally, the salt marsh is habitat for two listed bird species; the snowy egret and the little blue heron (see Attachment A). As previously stated, a wetland delineation has been completed for this parcel and accepted by FDEP and ACOE. PE 50 at 13. The Genesis Report also provided a brief discussion of flood plain and cultural resource considerations, and also provided an analysis of site planning and engineering, including access, utilities, owner site plan/lot lay out, and probable development costs. PE 50 at 13-15. Regarding south parcel 4, the Property, the Genesis Report concluded, in part, that "[t]his parcel has limited development potential." A cost estimate is provided. It is also concluded that water and sewer could be provided without incurring significant increases in development costs. "Development of the upland islands would require bridges, which significantly increases the development cost. There is no guarantee that the development within the wetlands would be permitted at this time." PE 50 at 16. The Genesis Report also included a report prepared by Biological Research Associates, which appears as Attachment A to PE 50. Mark Andrew Barth, vice president/senior ecologist for Biological Research Associates, was one of the two signatories to a section of the Genesis Report and also testified during the final hearing. T 175; PE 50, Attachment A. He reiterated that they prepared a preliminary environmental assessment for a proposed acquisition by a State agency. T 176, 180. (While unclear, it appears that his study area included the approximate western one-third of the Property, see, e.g., T 189; PE 50, Attachment A, Figures 1, 3-4, although other portions of the Property were studied. See, e.g., Finding of Fact 93.) Referring to PE 98-C and the Property (outlined in black) and the vacant land to the north outlined in red, Mr. Barth testified that they are "mainly comprised of salt marsh and scattered pine dominated islands." According to Mr. Barth, the term "pine islands," "describes isolated upland patches within the salt marsh." T 177. The salt marshes consist of vegetation that extends beyond the water level usually in very shallow water. T 178. The Property is part of an estuary system, Goose Bayou, for example. Id. See also T 381; JE 12 at IV-14-16 and Map 1. The salt marsh is inundated by saline or marine water as opposed to fresh water. T 178. One of the most significant features of an estuary system "is providing nursery grounds and habitat for marine and estuarine fish and wildlife." T 179. Mr. Barth considered the Property, south parcel 4, PE 98-D, to be environmentally sensitive in light of the combination of estuarine and upland areas which are undisturbed. T 185-186. Mr. Barth did not have enough information to assess specific impacts to the surrounding salt marsh and water in light of a proposed development on the Property. He felt it depended on the type of development. T 182. "Middens" have been found on the south side of the Property, in and around area 3 (CE 5 at 2, Figure 2). See, e.g., T 558-559; PE 50, Genesis Report at 13 and Attachment A at 6-7 and Attachment E, Figure 4, Project Base Map and Figure 5, PBY139 Base Map. Ultimate Findings of Fact Regarding Adequacy of Data and Analysis Ultimately, whether the Plan Amendment is based upon relevant and appropriate data and analysis is a close question. This is particularly true here where critical portions of Mr. Friedemann's analysis are based on information, e.g., Mr. Friedemann's photographs, collection of water quality samples, and observations of the Property (species seen and terrain), which post-dated the City's adoption of the Plan Amendment on November 9, 2004. As a result, his analysis of this information has been disregarded, notwithstanding the lack of an objection to the admissibility of his report, CE 5. See Conclusions of Law 110-114. (Mr. Friedemann also provided several aerials of the Property and surrounding area which pre-date the date of adoption of the Plan Amendment and have been considered along with his analysis of this data.) Also, to the extent that Ms. Easley relied on Mr. Friedemann's report (CE 5) and the post- adoption information collected by Mr. Friedemann and his analysis of that information, her opinions have also been disregarded. Nevertheless, Petitioners have the burden to prove, by a preponderance of the evidence that the Plan Amendment is not based upon relevant and appropriate data and analysis, which Petitioners have not done. Accordingly, based on a review of the entire record in this proceeding, it is ultimately concluded that the Plan Amendment is based on relevant and appropriate data and analysis, except as otherwise stated herein. See § 163.3177(6)(a), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(2), 9J-5.006(2), and 9J-5.012-.013. Consistency with the City's Plan, the West Florida Strategic Regional Policy Plan, the State Comprehensive Plan, and the City's Comprehensive Planning and Land Development Regulation Code Petitioners contend that the Plan Amendment is inconsistent with several provisions of the City's Plan: Future Land Use Element Policy 1.1.1.10; Coastal Management Element Goal 1, Objective 5.1, and Policies 5.1.1 and 5.1.3.3, and Goal 3; and Conservation Element Goal 1, Policies 6.6.2, 6.6.2.3, and 6.6.2.4. Petitioners contend that the Plan Amendment is inconsistent with several provisions of the LDRC: subsections 2- 5.5.6, 5-5.1, 5-5.2, 5-5.3, and 5-5.6.3.e. Petitioners also contend that the Plan Amendment is inconsistent with Section 187.201, Florida Statutes, and the West Florida Strategic Regional Policy Plan. The Plan Amendment changes the land use designation on the Property to RLD. The Plan Amendment is not a development order. See Strand v. Escambia County, Case No. 03-2980GM, 2003 WL 23012209, at *4 (DOAH Dec. 23, 2003; DCA Jan. 28, 2004), aff'd, 894 So. 2d 250 (Fla. 1st DCA 2005). It does not authorize any development to occur on the Property. Further, a special treatment zone, as used in the City's Plan, is not a FLUM land use district. Based on the plain and ordinary meaning of the various Plan provisions at issue, the Plan Amendment does not alter or interfere with the City's ability to maintain the quality of coastal resources; restrict the City's ability to maintain regulatory or management techniques intended to protect coastal wetlands, water quality, wildlife habitat, and living marine resources, for example, or prohibit the construction of docks, piers, wharves, or similar structures; interfere with the City's ability to provide for or have available adequate areas for public waterfront access or to provide the circumstances necessary for the conservation, protection, and use of natural resources; or interfere with the City's ability to enforce guidelines in its LDRCs related to, for example, the protection and conservation of the natural functions of existing soils, wetlands, marine resources, estuarine shoreline, stormwater management, wildlife habitat, or flood zones. Petitioners did not prove that the Plan Amendment is inconsistent with cited portions of the City's Plan, the State Comprehensive Plan, and the West Florida Strategic Regional Policy Plan. Further, the Plan Amendment need not be consistent with the City's LDRCs because it is not the subject of "in compliance" review.12
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 concluding that the Plan Amendment, adopted by the City of Panama City in Ordinance No. 1985, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 6th day of October, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2005.
The Issue Whether the Large Scale Comprehensive Plan Map and Text Amendment No. 04-2 (Plan Amendment) to the City of Cocoa's (City) Comprehensive Plan (Plan), adopted by Ordinance No. 39- 2004, is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties and Standing The Hunters own and reside on property located on Friday Road in the unincorporated area of the County. Their property abuts on two sides of the northeastern portion of the subject property. FSNE 47 at "H." The Kellgrens own and reside on property located on the northwest corner of the intersection of Friday and James Road in the unincorporated area of the County, abutting the southeast corner of the south Plan Amendment parcel. FSNE 47 at "KR." The Kellgrens also own and operate two businesses on Cox Road located on property they own which is located within the boundaries of the City. FSNE 47 at "KB." The County is a political subdivision of the State of Florida. The City is a municipality located within the County. The DCA is the state land planning agency charged with responsibility for reviewing comprehensive plans and plan amendments under Chapter 163, Part II, Florida Statutes. FSN and Hagen-Nicholson are Florida limited liability companies and are the owners of the subject property voluntarily annexed by the City pursuant to Ordinance No. 31-2004 and is subject to the Plan Amendment adopted by Ordinance No. 39-2004. All Petitioners submitted oral or written comments, recommendations, or objections to the City during the period of time beginning with the transmittal hearing for the Plan Amendment on August 24, 2004, and ending with the adoption of the Plan Amendment on December 14, 2004. At the final hearing, the parties stipulated that the Petitioners are "affected persons" within the meaning of Section 163.3184(1)(a), Florida Statutes, with standing to participate as parties in this administrative proceeding.3 See Endnote 17. The Challenges Petitioners allege that the Plan Amendment is not "in compliance" on several grounds: lack of need, urban sprawl, inadequate data and analysis relative to traffic and land use need, violation of the intergovernmental coordination element of the City's Plan, incompatibility, internal inconsistencies, inconsistencies with the Regional and State Plans, and failure to provide for adequate public participation during the transmittal hearing. The Plan Amendment Ordinance No. 39-2004 makes two changes to the Plan. First, the text of the Future Land Use Element (FLUE) of the Plan was amended to establish a new future land use category called "very low density residential areas." 4 Second, the FLUM was amended to change the designated future land use from "Residential 1 and Neighborhood Commercial (County)" to "Very- Low Density Residential (City)." FSNE 52 at Section 5. The Plan Amendment covers approximately 605.16 acres, although the City annexed approximately 766.27 acres, which included "both real property and rights-of-way." Id. at page 1 of 4; PE 8.f. at page 3 of 18. See also DCAE 2. The Subject Property The subject property consists of a rectangular parcel adjacent to and north of State Road (SR) 528, bounded by Interstate 95 (I-95) on the west; a triangular parcel adjacent to and southeast of the north rectangular parcel and similarly bounded on the south by SR 528; and a second rectangular parcel, due south of the north parcel and adjacent to and south of SR 528 and bounded by I-95 on the west and James Road on the south and a portion of Friday Road on the east. PE 17. There is no direct access from the subject property to I-95 and SR 528. The future land uses north of the subject property include Residential 1:2.5 (County); Residential 1 (County) to the south; Residential 1:2.5 (County) to the east of the north parcel; Residential 1 (County) to the east of south parcel; and Planned Industrial Park (County) and Industrial (City) further to the east; and Residential 1:2.5 (County) to the west of I-95. PE 80. The existing land uses to the north and south are single-family residential and vacant land; to the east, vacant land, heavy and light industrial uses; and to the west, I-95, single-family residential, and vacant land. Prior to being annexed by the City in August 2004, the subject property was located in the unincorporated portion of the County. The two rectangular portions (approximately 560.95 acres) were designated as "Residential 1" on the County FLUM, allowing one unit per acre. The approximate eastern half of the triangular portion (44.21 of acres) was designated as "Neighborhood Commercial." PE 80. There is an existing borrow pit (approximately 19-20 acres) located on the eastern one-third of the triangular portion. PE 17. Approximately 145.35 acres of wetlands, now designated Conservation, permeate the subject property. PE 8.F., page 4 of 18 and Exhibits 3 and 4; FSNE 52. There are approximately 459.81 acres (605.16 total acres - 145.35 acres of wetlands) of developable upland on the subject property. See DCAE 2. The Plan Amendment proposes a maximum development potential of approximately 1,839 dwelling units (459.81 acres X 4 dwelling units).5 There is a conflict in the evidence regarding the potential maximum development of the subject property under the County Plan. The City suggested approximately 2,358 dwelling units. See PE 8.f. at pages 4-6 of 18. The City's analysis yielded a maximum of 701 dwelling units for the portion of the subject property designated as Residential 1 and 1,657 dwelling units (including application of the density bonus) for that portion of the subject property designated "Neighborhood Commercial." The City assumed there could be 37.5 units per acre (which included a density bonus) developed on the 44.21 acre tract designated "Neighborhood Commercial." Id. Petitioners suggested a maximum of approximately 817 dwelling units could have been built on the subject property if the subject property were developed with the "density bonus" under the County's Plan. See Petitioners' Joint Proposed Recommended Order at 21, paragraph 25 and n.5. There is also a conflict in the evidence regarding the potential development of commercial uses (under the County's Plan) on the portion of the triangular parcel designated as "Neighborhood Commercial." Id. Based upon conflicting evidence, it is resolved that the maximum potential number of dwelling units which could have been developed on the subject property under the County's Plan is overstated. However, this finding does not alter the ultimate findings made herein regarding whether the Plan Amendment is "in compliance." Need The "need" question is founded in Section 163.3177(6)(a), Florida Statutes, which requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area . . ." This requirement is repeated in the statute's implementing rule which provides that "[t]he comprehensive plan shall be based on resident and seasonal population estimates and projections." Fla. Admin. Code R. 9J- 5.005(2)(e). Florida Administrative Code Rule 9J-5.006(2)(c) requires "[a]n analysis of the amount of land needed to accommodate the projected population, including: [t]he categories of land use and their densities or intensities of use; [t]he estimated gross acreage needed by category; and [a] description of the methodology used." Also, "need" is one of the factors to be considered in any urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. On December 14, 2004, the City adopted the Plan Amendment and responded to the objections raised in the DCA's Objections, Recommendations, and Comments (ORC) Report.6 During the plan amendment review process, the proposed residential land use density for the subject property was reduced from up to seven dwelling units per acre as originally proposed to "four units per acre with a Planned Unit Development (PUD) bonus of up to five units per acre," and, ultimately as adopted by the City Council, to "[a] maximum density of 4 units per acre." FSNE 52, Exhibit A; T II 631-632. The City has two needs -- a need for vacant developable land, and a need for middle-income housing. The City differs from many other municipalities in the County because the City's population declined almost 7.4 percent from the period of 1990 to 2000.7 Every city in the County, with the exception of the City of Cocoa and one other city, has experienced population growth. The City's Director of Community Development testified that the City had become hyper-inelastic -- it had stopped growing, and started shrinking. In response to this problem, the City adopted goals in 2002 which included annexation, housing, and residential development. Because of the goals that had been adopted and implemented, from 2002 to the time of the administrative hearing, the City's population rose approximately 7.25 percent. With the Plan Amendment, the City could capture increasing populations in the surrounding areas. In the summer of 2003, the City held a housing task force with private developers. The private developers explained that they were not developing in the City because even though there was vacant land, there were environmental constraints on the land. The vacant land consisted of large amounts of wetlands, with some of the wetlands located in flood plains. In the comprehensive plan adoption package sent to the DCA, the City included a map indicating the vacant land and a map indicating the extensive wetlands located on the vacant land. (The vacant land analysis identified the amount of land potentially available for development, without stating the specific number of available acres. Based upon the testimony at final hearing, excluding the subject property, there are approximately 223-230 acres of developable land within the City limits.) Furthermore, the City provided the DCA with population figures based on BEBR. Rule 9J-5 does not provide a specific requirement as to how a local government must demonstrate how much vacant land is located within its boundaries. Rather, Rule 9J-5 permits a local government to demonstrate how much vacant land is located within it boundaries in several ways, i.e., textually, raw data, or graphically. The DCA used the maps submitted by the City as well as the information submitted that the City's population was declining to make a determination that the City had demonstrated a need for the property. A needs analysis typically consists of an examination of the projected population over the planning time period, the land uses that exist within the local government, the amounts of the land uses, and then a determination of whether the local government has enough land to meet the projected population. However, a quantitative analysis is not the only way to perform a needs analysis. A city's plan for its future and the way it wants to grow is also considered. The City's use of population figures based on BEBR estimates and a map which demonstrated the vacant land was professionally acceptable. In other words, by using BEBR estimates and a map, the City did not use a "methodology" without approval by the DCA. If a plan amendment area had been surrounded by vacant land, then the issue of need is more prevalent. Hagen-Nicholson's planning expert performed a needs analysis. The calculation of the need is done with supply and demand. Supply is land, and demand is population growth. At the time the City began the plan amendment process, the City had approximately 223-230 acres of low-density residential land available. For demand, he determined that over the past three years, there were 113 building permits issued for new homes. The mathematical computation provides for the vacant land to be fully utilized within 5.9 years at an allocation of 1:1. Using the 1:1 ratio is not necessarily a practical ratio because there may be property that is not on the market for sale. When applying a vacant-land multiplier that is used in Orange County -- 2.4, the City would only have a three-year supply of vacant land. When dealing with a comprehensive plan, there should be a 10- to 20-year supply of land. The City's housing element provides that the City is required to provide housing for all current residents as well as anticipated future residents. As of 2002, 94 percent of its housing stock was valued at $100,000 or less, and 47 percent was valued at $50,000 or less. Accordingly, the City does not have adequate available middle-income housing and the Plan Amendment may meet this need. Urban Sprawl The Petitioners contend that the Plan Amendment constitutes urban sprawl. This contention is primarily based upon the assertion that the Plan Amendment is located in a rural area, and the assertion that the Plan Amendment triggers several of the 13 indicators of urban sprawl in Florida Administrative Code Rule 9J-5.006. Florida Administrative Code Rule 9J-5.003(111) defines "rural areas" as "low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property." As noted herein, the subject property is vacant and, prior to the adoption of the Plan Amendment, was designated as "Residential 1" (and a portion as "Neighborhood Commercial") under the County's Plan. It is surrounded by developed residential lands and infrastructure such as water, sewer, and roads. The surrounding areas are not undeveloped or unimproved. The area is a low density, but it is an urban low density, not a rural low density. FSN's expert planner, Gerald Langston, performed a study of the surrounding land uses in the vicinity of the Plan Amendment site (study area), including the unincorporated area of the County. Although the lands immediately to the north and south of the parcels are designated one unit per 2.5 acres and one unit per one acre, respectively, under the County's Plan, approximately 49 percent of the parcels in the study area are between one and 1.25 acres in size and approximately 30 percent are a little less than an acre. Three percent are over five acres. In other words, approximately 80 percent of the parcels are less than 1.25 acres in size. T III 819-820. Mr. Langston also studied census data and determined that the demographics of the area are not rural. It is a very rapidly growing area, with an urban development pattern that is basically built-out. (Within the study area, after deducting the 605 acres of the subject property, approximately 21 percent of the acreage is vacant or undeveloped. Stated otherwise, approximately 80 percent is developed. T III 827.) One of the County's experts, Edward Williams, did a general analysis of the lot sizes in the area. He testified that the area is rural with lot sizes of one unit per 2.5 acres. He reviewed photographs of the area and pointed out the lack of sidewalks, curbs and gutters, and lack of quarter-acre lots. However, he did not obtain any census data specific to the Plan Amendment property or to the surrounding area, and could not describe the percent distribution of lot sizes in the surrounding area. He believed that the area is agricultural and rural, but did not analyze the social and economic characteristics of the area surrounding the subject property.8 According to the County's Plan, the subject property is located in an area where the County is planning to provide future water and sewer. Additionally, a map in the County's Plan suggests that the area is actually not suitable for well and septic tanks. The subject property is within the City's water and sewer area and the City has adequate water and sewer capacity to service the subject property. The area surrounding the subject property is not rural under Florida Administrative Code Rule 9J-5.003(111), but rather consists of urban low-density residential development. Rule 9J-5.006(5)(g)1. Indicator 1 is not implicated. The subject property is surrounded by developed residential land and is not a substantial area of the City. The subject property will have a single use, but the introduction of another land use or mixed- use development would be incompatible with the surrounding area and not appropriate. Rule 9J-5.006(5)(g)2. Indicator 2 is not implicated, as the area is urban, and the Plan Amendment is not leaping over undeveloped lands. Rule 9J-5.006(5)(g)3. Indicator 3 is not present. The subject property is an area of vacant land surrounded by developed lands. The subject property is infill development. The Plan Amendment does not promote, allow or designate urban development in radial, strip, isolated or ribbon patterns emanating from existing urban developments. Rule 9J-5.006(5)(g)4. Indicator 4 is not present. The subject property is not a rural area with agricultural uses, and the wetlands on site are designated as Conservation and thus are protected. The Plan Amendment is not premature or poorly planned, as the surrounding area is already developed and the property is infill. The subject property is surrounded by infrastructure including water and sewer, and roads. The City has the capacity to provide water and sewer to the site. Rule 9J-5.006(5)(g)6. Indicator 6 is not present, as water, sanitary sewer, and reclaimed water lines have already been extended to the area. The Plan Amendment will add customers to facilities that have the capacity to handle them. By increasing the number of users in the system, the operational efficiency is increased. Therefore, the Plan Amendment maximizes the use of existing public facilities and services. Rule 9J-5.006(5)(g)7. The Plan Amendment does not fail to maximize the use of future public facilities and services. The facilities that exist in the area were built for future growth, and not connecting to them would be a failure to maximize the public investment that has already been made. Rule 9J-5.006(5)(g)8. Extending existing facilities and services to the property covered by the Plan Amendment will increase costs, but not disproportionately so. Water and sewer are close to the subject area, and the roads have capacity. Extending water and sewer at one unit per acre would be more costly and less efficient than for four units per acre. With respect to law enforcement, fire and emergency response services, this indicator is present to some extent. Rule 9J-5.006(5)(g)9. Indicator 9 does not apply, as there are no rural or agricultural uses in the area. Rule 9J-5.006(5)(g)10. The City has adopted a community redevelopment plan in the downtown neighborhood. The City can promote middle income housing with the Plan Amendment while at the same time pursue redevelopment in the downtown area. The two are not mutually exclusive. Rule 9J-5.006(5)(g)11. The Plan Amendment provides for a single residential use and does not encourage an attractive and functional mix of uses. However, putting commercial or industrial uses on the subject property does not make good planning sense as the area is not appropriate for a mix of uses. In summary, the Plan Amendment does not meet the definition of "urban sprawl." See Fla. Admin. Code R. 9J- 5.003(134). The Plan Amendment is not in a rural area; it is surrounded by residential development. Public facilities are very close, and the Plan Amendment is within the City's service area. The Plan Amendment does not "leapfrog" since there are no large tracts of undeveloped land between the City and the Plan Amendment property. It is not scattered development; it is infill. While it is true that it is a low density use and a single use, the area is not appropriate for mixed-use, retail, commercial or an extremely high residential density. Florida Administrative Code Rule 9J-5 requires a consideration of the context in which the plan amendment is being proposed. Land use types within the jurisdiction and in proximate areas outside the jurisdiction will be evaluated. Local conditions, including the existing pattern of development and extra-jurisdictional and regional growth characteristics, should be considered as well. The consideration of the parcels surrounding the Plan Amendment was important. The City considered the fact that other cities and the County as a whole are experiencing population growth. In considering how the City has grown in the past and its development pattern, how the area around the City has grown and its development pattern and population projections, the Plan Amendment is not urban sprawl. Transportation Facilities The City submitted data and analysis relative to traffic impacts in a study prepared by Traffic Planning and Design, Inc. (TPD). PE 83. The TPD traffic study was accomplished in accordance with the County's concurrency management procedures and based on adopted Levels of Service (LOS). After the City's re-submittal to the DCA, the Florida Department of Transportation (FDOT) had no comments or concerns about transportation impacts. DCAE 2, FDOT analysis. Although the Plan Amendment would allow for more traffic to be generated, increased traffic does not necessarily render a plan amendment not in compliance. A broad brush approach is taken at the comprehensive planning stage. A compliance determination does not consider details such as the design of the roads, or whether roads have guardrails. The issue is whether there is enough capacity to maintain the adopted LOS. Adequate Capacity There is adequate capacity on the surrounding roads to accommodate the trips generated by the Plan Amendment. The TPD traffic study forecasted traffic demands and the impact on available capacity along roadways affected by the subject property and concluded that "all road segments will operate within their adopted LOS with excess traffic capacity available for future development" and "there will be adequate capacity to accommodate the trip generation" contemplated by the Plan Amendment. PE 83. The projected traffic generated by the subject property between now and the year 2010 will not cause any of the roadways to exceed capacity. Based on the TPD traffic study, the County agreed that the anticipated trips generated would not exceed the adopted LOS and that there is available capacity on the road segments affected by the project. Although Petitioners raised multiple traffic issues in their respective amended petitions, Petitioners mainly presented testimony that anticipated development of the subject property will cause increased traffic on County roads which will lead to increased safety concerns. Safety Concerns on James Road The County presented evidence regarding existing and potential safety concerns on several road segments including James Road, which may result from anticipated development of the subject property. The County's main safety concern (with development of the south parcel) is the segment of James Road between Friday Road and Cox Road because of a steep canal that runs along mainly the north side of James Road for approximately one mile. The County's safety concerns relating to James Road only apply to the southern property; thus any increase in traffic on the northern property, including the triangular portion, does not impact safety on James Road. The safety problems relating to James Road exist currently and existed in 2004. Mr. Denninghoff testified that the anticipated increased traffic as a result of the Plan Amendment will expose additional traffic to the existing hazardous conditions on James Road beyond what was planned. The safety concerns with James Road could be resolved by installation of a guardrail, improved and additional street lights, and rumble strips on the road before the stop signs. The County has not added guardrails to James Road. These safety improvements are needed now. Maintenance Costs for County Roads Besides safety, another issue raised by the County during the hearing regarding transportation issues was the anticipated increase in wear and tear on the County roads resulting in increased costs to the County. Residents of the subject property will pay impact fees, which may be utilized for improvements to capacity, operational improvements at intersections, including the safety improvements mentioned above, for new facilities, or expansion of existing facilities, but not maintenance. The impact fee is paid directly to the County. By ordinance, the Brevard County Board of County Commissioners approves the expenditures of the impact fees collected. The County will receive approximately $2.6 million in impact fees from the development of the subject property. The impact fees collected by the County could be utilized to fund safety measures because they are related to capacity improvements. No development was approved by the Plan Amendment. Pursuant to the City's Code and Plan, traffic impacts of a development are reviewed in more detail after the plan amendment process, specifically, during the development process. Petitioners' concerns are premature. Development orders are the result of the subdivision and site plan approval process. Prior to the approval of the final PUD, or the issuance of building permits, the City will examine whether the necessary public facilities are operating within the adopted levels of service. When the developer applies for permits to develop the subject property, the City will review issues concerning traffic. The developer will submit an updated traffic study, which will be reviewed by the City and the County. The County is responsible for issuing driveway permits. Transportation Element Objective 2.3 of the City's Plan provides that "[d]evelopment shall bear the full burden of the cost of roadway improvements necessitated by impacts to the roadway network caused by traffic generated by said development through the adopted site approval process." The City's Plan also provides that new development will not be permitted unless mitigative measures are undertaken to address level of service impacts caused by development. Intergovernmental Coordination The City's Plan contains an Intergovernmental Coordination Element (ICE). The Plan Amendment does not make any changes to that element. Petitioners presented documentary evidence through Mr. Williams' report alleging that the City violated the ICE in its Plan. However, the evidence shows that the Plan Amendment is not inconsistent with any intergovernmental coordination requirements in the City's Plan. Intergovernmental coordination does not mean that one local government must acquiesce to a request from an adjacent local government. Intergovernmental coordination requires information sharing, and there are numerous objectives and policies in the City's Plan addressing the City's responsibility to coordinate with the County regarding development impacts at the appropriate time. Most of the policies and requirements for intergovernmental coordination in the City's Plan are driven by the subdivision site plan approval process. The City coordinated with the County, as the City provided a copy of its annexation report to the County in July of 2004. The City manager invited the County manager to discuss the report with City staff, but the County did not respond. The City also used the County's concurrency management procedures in analyzing traffic, and reduced the density from seven to four units per acre based in part upon the County's comments during the review process. Compatibility With Surrounding Areas Florida Administrative Code Rule 9J-5.003(23) provides: "[c]ompatibility means 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." The residential development contemplated by the Plan Amendment is compatible with the surrounding land uses. The subject property is surrounded by urban residential development and existing public infrastructure. The City studied the area surrounding the Plan Amendment, and determined that it was developed in an urban and suburban manner. To be compatible with the surrounding areas, the City developed the VLDR category allowing four units to the acre on the subject property. The County's future land use for the property to the north of the Plan Amendment is designated residential to be developed at one dwelling per 2.5 acres. However, Hagen- Nicholson's expert testified that it has been developed more intensely, with some lots developed at less than an acre. The County's future land use to the south of the Plan Amendment is one unit an acre. The area to the south, however, is less intensely developed -- it is developed at 1.5 units to the acre. The County allowed areas of three units to the acre and five units to the acre to be developed in the middle of the area to the south of the Plan Amendment. Hagen-Nicholson's planning expert testified that the County's planning of the area to the south of the Plan Amendment is the cause of urban sprawl. The Plan Amendment allows a hole in the donut to be filled in so that in the future, there is not pressure to develop homes in a leapfrog fashion two to three miles away. In this case, residential next to residential is compatible. The Plan Amendment is compatible with adjacent development. Internal Consistency Petitioners allege that the Plan Amendment is not internally consistent with several provisions of the adopted City Plan. Specifically, the report of Petitioners' planning expert alleges that the Plan Amendment is not consistent with the City's Policies and/or Objectives 1.1.1.2, 1.1.1.8, 1.1.2.3, 1.1.2.5, 1.1.3, 2.1.1, 2.3, 2.3.1.4, 2.4.1, 2.4.5, 2.6.2, 2.6.4, 4.2.4.4, 4.2.5.2, 4.2.6.3, 4.3.4.1, 9.4.4, 9.8, 9.8.1, and 9.8.2. The City's Director of Community Development testified that the Plan Amendment is internally consistent with the City's Plan and that Petitioners' expert was applying the site plan approval process to the Plan Amendment. The majority of the policies or objectives cited in the report of Petitioners' expert pertain to later stages of the development process, not the plan amendment process. For instance, Petitioners allege that the Plan Amendment is not consistent with Policy 4.2.6.3 because there is no mention in the development agreement concerning who is responsible for the costs of providing the extension of lines, alteration of lift station and the cost of plant capacity for providing wastewater service. The Plan Amendment is not inconsistent with Policy 4.2.6.3 because the developer's agreement for the subject property provides that the developer is required to comply with all city, local, county, state, and federal requirements. Additionally, allegations concerning Policies 1.1.2.5, 1.1.2.6, 2.4.1, and 2.4.5 are premature because they pertain to setback requirements and issues which pertain to later stages of the development process. Policies 4.2.4.4 and 4.2.5.2 pertain to septic tanks and locating waste water package plants. These Policies do not pertain to the Plan Amendment. FSN's planning expert testified that the Plan Amendment is consistent with the City's Plan and that the Plan Amendment will benefit the City as a whole. The DCA's senior planner also testified that several of the Policies which Petitioners alleged that were inconsistent with the Plan Amendment were premature because they pertain to the development stage, not to the plan amendment stage. The Plan Amendment is consistent with Policies and Objectives 1.1.1.2, 2.1.1, 2.6.2, 2.6.4, 2.9.1, 2.9.3, 4.1, 4.1.1.5, 4.1.3.1, 4.1.5, 9.4.4, 8.1.2, 8.2.1, 9.8.1, 9.8.2, and 9.8. Petitioners did not prove that the Plan Amendment is inconsistent with the provisions they cited. Regional and State Plans Section 163.3177(10)(a), Florida Statutes, provides in pertinent part: for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Strategic Regional Policy Plan A determination of whether the Plan Amendment is consistent with the East Central Florida Regional Planning Council's Strategic Regional Policy Plan (SRPP) is based on an assessment of the SRPP as a whole. § 163.3177(10)(a), Fla. Stat. Petitioners did not present evidence that the Plan Amendment is inconsistent with the SRPP as a whole. Petitioners' expert opined that the Plan Amendment is inconsistent with certain provisions of the SRPP. The report only discussed several policies in an isolated fashion and did not consider the SRPP as a whole. Nevertheless, the Plan Amendment is consistent with the SRPP as a whole, and is consistent with the specific provisions with which Petitioners' report alleged inconsistencies. Specifically, the Plan Amendment is not inconsistent with the SRPP Policy 6.1 because the area is already urban. Additionally, the Plan Amendment is in an area that has existing commercial uses nearby. The Plan Amendment is consistent with SRPP Policies 6.4 and 6.5 because both of these policies pertain to rural areas. The subject property and the surrounding areas are not rural. The Plan Amendment is consistent with SRPP Policy 6.16 because it is based upon area-wide projections and forecasts. The Plan Amendment is consistent with SRPP Policy 6.17 because it does not adopt a policy providing that there shall be no informal mediation processes, or that informal mediation shall not be used. The Plan Amendment is consistent with SRPP Policy 6.19 regarding the encouragement of public participation. Overall, the City encouraged public participation. The City has the capacity and ability to develop its downtown area and to promote infill at the same time. Accordingly, the Plan Amendment is consistent with SRPP Policy 6.21. The Plan Amendment concerns the issue of deciding a future land use. SRPP Policy 5.17 1.a., which pertains to addressing transportation impacts of a development project in one jurisdiction on an adjacent jurisdiction, will be addressed at the appropriate stage of the development process. SRPP Policy 5.23 pertains to equitable cost participation guiding development approval decisions. It does not pertain to the Plan Amendment because there is no transportation capacity improvements required by the Plan Amendment. The Plan Amendment is consistent with SRPP Policy 7.3 because the area encompassing the Plan Amendment is already included in the City's approved future service area. Petitioners' report set forth an allegation that SRPP Policies 7.5, 7.9., 7.10, and 7.19 "would all be in conflict with the city of Cocoa proposed amendment." The Plan Amendment is consistent with these SRPP Policies. FSN's planning expert testified that the SRPP uses directive verbs that are intended to be suggestions and recommendations to a local government, not requirements. He provided testimony that since the subject area is urban, and not rural, the SRPP does not impact this Plan Amendment because it provides for protection of regional natural resources, and promotes intergovernmental coordination. Hagen Nicholson's expert also testified that the Plan Amendment is consistent with the SRPP. The East Central Florida Regional Planning Council did not raise any concerns to the Plan Amendment violating the SRPP. Finally, the Plan Amendment actually furthers SRPP Policies 4.23, 4.2.4, 6.1.4, 7.1, 7.4, and 7.5. State Comprehensive Plan A determination of whether the Plan Amendment is consistent with the State Comprehensive Plan (State Plan) is based on an assessment of the State Plan as a whole. Petitioners alleged in paragraphs 39, 46, 59, and 65 of the Amended Petition that the Plan Amendment is inconsistent with Sections 187.201(18)(b) and 187.201(21) of the State Plan. However, they did not present persuasive evidence that the Plan Amendment is inconsistent with the State Plan as a whole. The Plan Amendment is consistent with the State Plan as a whole, and, in particular, Sections 187.201(18)(b) and 187.201(21), Florida Statutes. Furthermore, the Plan Amendment furthers the State Plan goal to "increase the affordability and availability of housing for low-income and moderate-income persons. . . ." See § 187.201(4), Fla. Stat. It furthers the State Plan goal set forth in Section 187.201(9), Florida Statutes, because the Plan Amendment protects the wetlands by designating them as Conservation areas. Finally, it furthers the State Plan goal set forth in Section 187.201(15), Florida Statutes, because the Plan Amendment preserves environmentally sensitive areas. Public Participation9 Petitioners alleged that public participation was not provided with respect to the August 24, 2004, transmittal hearing, primarily because the City allegedly refused to allow citizens access to the hearing and the opportunity to speak during the hearing. At the administrative hearing in this matter, following denial of the DCA's motion in limine, the issue was narrowed to the question of whether the August 24, 2004, hearing was the type contemplated by Chapter 163, Part II, Florida Statutes, with the ultimate issue being whether or not that will impact whether the Plan Amendment is "in compliance." The issues identified in footnote 1 of Petitioners' Hunters and Kellgrens' Amended Petition are not at issue. Council meetings have an order of discussion. During "delegations," only City residents, employees, and water customers may speak. The City Council is authorized to set aside up to 30 minutes of each regular Council meeting limited to hearing from only residents and taxpayers of the City. After the delegations portion, the consent agenda is considered, and then the public hearings portion follows. Under the public hearings portion, any person may speak. Speaker cards are filled out, passed on to the Mayor, and the Mayor calls the names from the cards. On August 17, 2004, the City published a Notice of Future Land Use and Zoning Change in the Florida Today Newspaper. The notice stated that a public hearing would be held by the City Council in their chambers at 7:00 p.m. on August 24, 2004, on subjects including the proposed plan amendment and re-zoning of the subject property. The notice also stated that the hearing was a public hearing, that all interested persons may attend and that members of the public are encouraged to comment on the proposed ordinance at the meeting. The parties stipulated that the August 24, 2004, hearing was properly advertised and noticed.10 According to the transcript of the City Council meeting on August 24, 2004, the meeting, including the transmittal hearing portion, began at 7:15 p.m. Several hundred people showed up and were outside of the building at 6:00 p.m. The City's planner testified that he did not have any expectation that there would be that many people there. The turn-out was so large that not everyone could fit in the Council chambers. The capacity of the room is either 91 or 93 based upon fire department regulations. The first issues discussed related to the annexation of the property subject to the proposed plan amendment. There was also discussion regarding the re-zoning and the proposed plan amendment. PE 14 at 3-48. Thereafter, Mayor Parrish stated that "it would be appropriate to have a public hearing regarding these three ordinances." Id. at 48. The Mayor asked everyone to fill out speaker cards.11 The City Attorney stated that there were speaker cards about three to four inches thick; "about two hundred plus cards of people who want to speak." Id. at 49, 51. Mayor Parrish stated: I know. There is no way we can hear them in one night. Also, we have to go by the concerns and the citizens that we hear and I doubt there are this many ideas that is going to be expressed tonight. If we don't duplicate something that we have already heard, we might be able to bring them down a little bit. If we can elect representative to speak on behalf of other names that can be given possibly as a way to cut down on that. We also have heard from planning and zoning and have spoken with the members of planning and zoning. We have minutes from the meetings. We have copies of presentation that were given at that meeting and letters and phone calls and e-mails, and so, we have got a good sense of the concerns that were expressed that night and since that night. We do want to hear from everyone we possibly can. The criteria for a public hearing are basically three minutes for a speaker and representatives of recognized groups shall be limited to ten minutes. So if you have somebody that can speak on behalf of a group of people they can have ten minutes and possibly get everything expressed that maybe a larger group would take longer than the ten minutes. A total debate on a single issue is limited to 30 minutes. Since we have three issues -- Id. at 49-51. See also PE 14 at 53-54. The public hearing portion of the transmittal hearing did not get underway until approximately 8:30 p.m. Id. at 51. The City Council typically allows 30 minutes for the public hearings portion, but decided to extend the time to 90 minutes, id. at 53, and later went beyond that limit to accommodate more speakers.12 After several persons began expressing their opposition to the items, including the proposed plan amendment, id. at 58-82, the Mayor stated that the comments were "starting to get a little bit repetitive" on several issues and requested the attendees to try "to narrow it down to some other issues that maybe haven't been brought up so far." Id. at 82. Other speakers followed, id. at 82-128, when the Mayor stated that they were "going to run over with just the cards" that she had and inquired whether they wanted to extend the time. It was decided to "hear the three or ten depending upon how long." Id. at 129. Again, others spoke when a police officer said "[w]e have a few more[,] [a]re you done?" The Mayor responded: "We are past time. I'm trying to finish the ones that I have up here that are saying that they are in line." Id. at 140. Councilman Anderson wished to cut off public comment and Councilwoman Collins provided a second "because of how late it is -- 11 o'clock Mayor." Id. at 141. Without ruling on the request, Stacy Ranger, a representative of the County, spoke and focused on the annexation issue, including neighborhood compatibility. Id. at 141-146. Thereafter, Mr. Titkanich was granted permission to respond to comments. Id. at 147-157. The public portion of the hearing was then closed. Id. at 158. After some discussion, a motion to extend the meeting not more than one hour was approved. This motion was made sometime after Councilwoman Collins announced how late it was - 11 p.m. Id. at 176-177.13 Ultimately, the Council voted four to one in favor of Ordinance No. 39-2004. Id. at 181-182. Mr. Kellgren testified that he arrived at the hearing location around 6:00 p.m. There was a large crowd of several hundred people outside. He filled out a speaker's card, but could not get into the building. He waited outside and tried to observe what was going on. He left the hearing around 9:30 p.m. because he did not see the point in staying any longer; he could not get in and could not hear anything. His speaker's card was not marked "NR" or "No Response." PE 36. Although Mr. Kellgren was not able to get into the building to speak, he had retained lawyer Kimberly Rezanka to represent him and his wife at the August 24, 2004, hearing. During the hearing, Ms. Rezanka spoke to the City Council on behalf of the Kellgrens and several other individuals.14 (Mr. Kellgren attended the P&ZB hearing and opposed the proposed plan amendment and rezoning.) After the transmittal hearing, Mr. Kellgren sent two letters to the DCA's Plan Review Administrator expressing concerns regarding the proposed plan amendment. One letter was signed by Mr. Kellgren and others. No complaint was made regarding the conduct of the transmittal hearing. PE 81-82; T II 358. Ms. Hunter arrived at the City Council's August 24, 2004, meeting around 5:30 p.m. (She attended the P&ZB hearing and spoke.) She testified that she was not allowed to go inside the building because she was not a City resident. She wrote comments opposing the proposed plan amendment on her speaker's card -- "7 houses per acre would be ridiculous Against [two underscored lines] rezoning of property at Friday [&] James in Cocoa - 1 house per acre only!!". She wrote this information on the card so her intentions would be known. The upper-right hand corner of her card is marked "NR," although she did not write these letters on the card. She left the public hearing around 9:30 p.m., because she had to work the next day and take care of her children. She knew that the hearing was still going on and acknowledged that her name could have been called after she left. She did not go to the December 14, 2004, adoption hearing. Brian Seaman lives in Canaveral Groves, which is in the unincorporated area of the County and east of the north parcel. FSNE at "BS." He arrived at 6:00 p.m. He testified that he was not allowed in because he was not a City resident. He filled out a speaker's card, but believes that his name was not called. His card was not marked "No Response" or "NR." He testified he remained at the public hearing until approximately 11:45 p.m., when he was told of the Council's vote. See Endnote (He attended the P&ZB hearing and later attended the December adoption hearing held at the Civic Center. He did not speak at those hearings because the issues that were of concern to him had already been raised by others.) The public hearing portion of the transmittal hearing lasted over three hours. There is evidence that names on the speaker cards (CE 10), such as Mr. Seaman, were not called. There is also evidence that there was no response for many of the names as reflected on the cards.15 Nevertheless, citizens spoke during the public hearing portion of the transmittal hearing. Notwithstanding the large turn out, the Mayor and Council took measures to accommodate the larger-than-expected crowd and public comment was received. The City Council learned from the experience and conducted the adoption hearing at the Civic Center. No issues are raised regarding the adequacy of the adoption hearing. There is no persuasive evidence that any person was deprived of the opportunity to submit written objections, comments, or recommendations to the Council prior to, during, or after the Council's consideration of the proposed plan amendment (during the transmittal hearing). The DCA's expert planner, Erin Dorn, testified that Florida Administrative Code Rule 9J-5.004 requires local governments to adopt procedures for public participation. Once the DCA receives an amendment package from a local government, it goes to the plan processing team (PPT). The PPT checks the package for "completeness" to make sure that it includes all information required by law. The PPT does not review the plan amendment. Once the package is complete, it is sent to the planning review team for a substantive review. Review of a plan amendment includes public facilities, natural resources, and transportation. Review of a plan amendment does not include a review of whether every person who wanted to attend the hearing was permitted to do so, or a review of the number of people who attended. Such aspects of public participation are not considered by the PPT, and necessarily the DCA when reviewing a plan amendment for a compliance determination. The DCA received letters from citizens, voicing concerns regarding the Plan Amendment.16
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Plan Amendment adopted by the City through Ordinance No. 39-2004 is "in compliance." DONE AND ENTERED this 3rd day of July, 2006, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2006.
The Issue The issue to be determined in this case is whether the proposed amendment to the Pinellas Countywide Plan Map, changing the land use designations on 34.6 acres of land in Safety Harbor, Florida, should be approved.
Findings Of Fact The Parties Petitioner is the contract purchaser of 34.6 acres of land (“the Property”) located near the northeast corner of 10th Street South and McMullen-Booth Road in the City of Safety Harbor. Respondent is the Board of County Commissioners of Pinellas County, in their capacity as the CPA. The Proposed Amendment The Amendment would change the land use designations for nine parcels within the Property. The Amendment would make the following changes to the current land use designations: However, the parties’ dispute focuses on the 15.8-acre parcel that is now designated Industrial Limited (“IL”). The Amendment would change the designation of the parcel to Residential Medium (“RM”). Existing Land Uses on the Property and Surrounding Area Located on the 15.8-acre parcel (referred to hereafter as the “IL parcel” or “Richman parcel”) are numerous industrial buildings and structures associated with a citrus processing facility that is no longer in operation. There are no uses being made of the other eight parcels that comprise the Property. The balance of the Property is undeveloped and relatively undisturbed. There are wetlands as well as a creek on the Property. There is an extensive tree canopy in the undeveloped area. Access to the IL parcel is via 10th Street South (S.R. 590), which is a two-lane, undivided roadway on the southern boundary. There is no rail access to the IL parcel. To the north and east of the Property are relatively affluent neighborhoods of single-family residences on lands designated Residential Suburban and Residential Low. The residences on the north are separated from the IL parcel by the large undeveloped area, but the residences to the east are immediately adjacent to the IL parcel. McMullen-Booth Road, a six-lane arterial roadway, runs along the northwestern boundary of the Property. On the southwestern boundary, adjacent to the IL parcel, are lands designated Residential/Office/Retail where there is a drug store, car wash, and bank. Across 10th Street South, on the southeast corner of its intersection with McMullen-Booth Road, is a gas station/convenience store. Also across 10th Street South, opposite the entrance to the citrus processing facility, is land designated IL and used for warehousing, auto-repair, and other uses. The Scenic Non-Commercial Corridor McMullen-Booth Road has been designated by Pinellas County as a Scenic Non-Commercial Corridor (“SNCC”). The SNCC designation includes lands bordering both sides of McMullen-Booth Road. The SNCC designation identifies preferred land uses within the corridor to achieve the CPA’s goal to preserve and enhance the scenic qualities of the corridor. The western half of the IL parcel is within the McMullen-Booth Road SNCC. Under the SNCC policies, the preferred land use for the western half of the parcel is “Mixed Use.” The Amendment would allow for land uses consistent with the SNCC. The Development Agreement The proposed Amendment is accompanied by a Development Agreement between Richman and the City of Safety Harbor which provides more specifically for how the Property would be developed. Among other items, the Development Agreement provides for: 246 apartment units in three-story and four-story buildings; a 25,000-square-foot office building fronting on McMullen-Booth Road; a 182-foot buffer between the nearest apartment unit and the residences to the east; a requirement that no three-story building will be located within 450 feet of the eastern property line; and the preservation of more than 10 acres of the undeveloped area, including the creek and wetlands. Action on the Proposed Amendment Changing a land use designation in the City of Safety Harbor requires an amendment to the Countywide Plan Map, which depicts all land use designations in Pinellas County and its municipalities. Countywide Rules are used in conjunction with the Countywide Plan and they address amendments to the Countywide Plan Map. The Countywide Plan and Countywide Rules are created and administered by the CPA. Proposed amendments to the Countywide Plan Map are reviewed by the Pinellas County Planning Advisory Committee (“PAC”), which is comprised of planners from most of the local governments in Pinellas County. The PAC makes a recommendation to the Pinellas Planning Council on a proposed amendment. The PAC recommended approval of the Amendment. The staff of the Pinellas Planning Council prepared an “Agenda Memorandum,” which included the following findings which are supported by the preponderance of the evidence presented in this case and, therefore, are findings of fact in this Recommended Order: The RM land use is well-suited to serve as a transition from non-residential areas to the west and south and the residential neighborhoods to the east and north. The area is not part of a larger consolidated industrial area, but the Richman parcel, together with the IL parcel across 10th Street South, could function as a small industrial park. The IL category, with all potential uses allowed, is “in the broadest sense” inconsistent with single-family uses to the north and east. The IL parcel can accommodate certain “target employers.” At the final hearing, target employers were identified as “office light industrial and research and development.” The environmentally sensitive areas on the Property and adjacent to single-family residences limit the types of industrial uses that could be located on the IL parcel. The Amendment does not foreclose the opportunity to attract target employers to other parcels within the Property. “On balance,” the Amendment is consistent with the Countywide Rules. The Council staff recommended approval of the Amendment. As partial mitigation for the loss of the IL land use, the staff recommended that Richman work with the County to attract target employers to other parcels within the Property. The Council held a public hearing and voted to recommend approval of the Amendment. The Pinellas County planning staff recommended approval of the Amendment to the CPA. The CPA, at a public hearing, voted to deny the Amendment, based primarily on concern over the loss of industrial lands. Relevant Criteria Section 5.5.3.1 of the Countywide Rules states: In the consideration of a regular Countywide Plan Map amendment, it is the objective of these Countywide Rules to evaluate the amendment so as to make a balanced legislative determination based on the following six (6) Relevant Countywide Considerations, as they pertain to the overall purpose and integrity of the Countywide Plan. Of these six criteria, the parties stipulated that only the consideration stated in Section 5.5.3.1.1 is at issue in this case. That section states: Consistency with Countywide Rules. The manner in, and extent to, which the amendment is consistent with Article 4, Plan Criteria and Standards of these Countywide Rules and with the Countywide Plan as implemented through the Countywide Rules. The parties disputed what criteria are “implemented through the Countywide Rules.” Richman contends that to be implemented through the Countywide Rules, a policy must be contained in the Countywide Rules. The CPA contends that there are provisions of the Plan that must be considered even if they do not also appear in the Rules. As set forth in the Conclusions of Law, in order for a provision of the Countywide Plan to be implemented through the Countywide Rules so that the provision can act as a criterion applied by the CPA in the approval or denial of a proposed amendment to the Countywide Plan Map, the provision must be repeated, paraphrased, or adopted by reference in the Countywide Rules. In this regard it is noted that Resolution 06-3 of the Pinellas Planning Council, which discusses the need to reserve industrial parcels for target employers, was referred to in the Council's Agenda Memorandum and discussed in the public hearing before the CPA. However, Resolution 06-3 is not implemented through the Countywide Rules and, therefore, is not a source of criteria applicable to the Amendment. The SNCC designation for McMullen-Booth Road is in the Countywide Rules and, therefore, must be considered by the CPA in its review of the Amendment. Section 2.3.3.6.1 of the Countywide Rules is relevant to the issues raised and states in part: Category/Symbol – Industrial Limited (IL) Purpose – It is the purpose of this category to depict those areas of the county that are now developed, or appropriate to be developed, in a limited industrial manner; and so as to encourage the reservation and use of consolidated areas for industrial and industrial/mixed use in a manner and location consistent with surrounding use, transportation facilities, and natural resource characteristics. In addition to this statement of purpose, the section addresses locational characteristics, traffic generation characteristics, density/intensity characteristics, density/intensity standards, and “other standards.” Section 2.3.3.6.1 identifies the “primary uses” allowed in the IL land use category as office, research/development, light manufacturing/assembly, wholesale/distribution, and storage/warehouse. The “secondary” uses allowed are residential, retail/commercial; personal service/office support, commercial/business service, commercial recreation, temporary lodging, institutional, transportation/utility, recreation/open space, transfer/recycling, incinerator facility, and agricultural. The CPA’s desire for certain target employers to use the IL parcel fails to account for the fact that there are industrial uses of the site that are allowed under the IL land use category in the Countywide Plan that would cause noise, odor, truck traffic, or other conditions that are incompatible with adjacent residential uses. Understandably, the CPA would like to see the Richman parcel used in the future by one of the target employers, but the CPA does not acknowledge that the IL designation authorizes other uses that would be incompatible with surrounding uses. At the final hearing, the County’s Director of Economic Development testified that the Richman parcel is “perfect” for an IL land use, but that testimony only makes sense in the context of certain target employers. In the context of all the IL uses that are allowable under the Countywide Plan and Countywide Rules, the site is imperfect and impracticable because of the proximity of single-family homes and the access from an undivided, two-lane street used by residential traffic. Several years of marketing efforts by Richman and the County have not generated a single offer to purchase or lease the Richman parcel for any of the allowed IL uses, including target employers. Following the CPA’s denial of the Amendment, the staff of the Pinellas Planning Council undertook a review of its current policies regarding the preservation of industrial lands and recommended amending the Countywide Rules to identify industrial properties “worthy of preserving” and to develop criteria for the evaluation of proposed amendments to convert industrial land. These recommendations highlight the current lack of adequate guidance in the Countywide Rules. The determination by the CPA that the Amendment is inconsistent with the Countywide Rules is based primarily on three propositions which are contrary to the preponderance of the evidence. First, that the Richman parcel is being reserved for IL uses. The preponderance of the evidence shows that the parcel is inappropriate for several authorized IL uses and the CPA wants the parcel reserved only for a few target employers. Second, that the IL designation is not inconsistent with the McMullen-Booth Road SNCC. The identification of preferred land uses in the corridor would have no effect unless it was a factor to be considered by the CPA when it reviews proposed amendments to the Countywide Plan Map. The IL designation within the McMullen-Booth SNCC is inconsistent with the goal of the corridor and is a factor (not a requirement) in favor of changing current IL designation to another designation that qualifies as Mixed Use. Third, that the Richman parcel is part of a “consolidated area” for industrial uses in a location “consistent with surrounding uses” as described in Section 2.3.3.6.1. The preponderance of the evidence shows that this is not a consolidated area for industrial uses. It was once a consolidated area, but past land use decisions have eliminated more than half the industrial acreage. If Richman had proposed to consolidate its parcel with the IL parcel south of 10th Street South to create a large, integrated warehousing and distribution operation served by rail, the proposal would have been consistent with the core purpose for IL lands as expressed in Section 2.3.3.6.1. The impracticability of such a proposal, however, highlights the problem with the current IL designation for the Richman parcel. The County’s 2008 Target Employment and Industrial Land Study found that two-thirds of the “target industries” operating in Pinellas County are on lands not designated industrial, because these uses can often be accommodated on lands designated for office uses. The 2008 study recommended that the industrial designations of lands in five “prime industrial areas” be preserved. Richman’s IL parcel is not in one of these prime industrial areas. When all relevant factors are considered, the CPA appears to be taking a stand for preservation of industrial lands in the wrong place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Countywide Planning Authority issue a Final Order approving the Amendment. DONE AND ENTERED this 18th day of November, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2013. COPIES FURNISHED: Scott A. McLaren, Esquire Edward D. Armstrong, III, Esquire Hill, Ward and Henderson, P.A. 3700 Bank of America Plaza 101 East Kennedy Boulevard Tampa, Florida 33602 Gordon Beardslee, General Planning Administrator Pinellas County Department of Strategic Planning and Initiatives 310 Court Street Clearwater, Florida 33756 Michael Crawford, Executive Director Pinellas Planning Council 310 Court Street, Second Floor Clearwater, Florida 33756-5137 Kenneth Welch, Commission Chairman Board of County Commissioners Pinellas County 315 Court Street Clearwater, Florida 33756 Nancy S. Meyer, Esquire David S. Sadowsky, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756
Findings Of Fact Background Lee County adopted its comprehensive growth management plan under Section 163, Part II, Florida Statutes, (the Act) on January 31, 1989 (without regard to the subject plan amendments, the Plan). The Plan is compiled in the first volume of a three- volume set. The remaining volumes contain data and analysis (Original Data and Analysis). The Department of Community Affairs (DCA) determined that the Plan was not in compliance with the Act. DCA filed a petition challenging the Plan under Section 163.3184(10), which commenced DOAH Case No. 89-1843GM. Pursuant to a settlement agreement, on September 6 and 12, 1990, Lee County adopted Plan amendments and revised the Original Data and Analysis. These amendments to the Plan shall be referred to as the Plan Amendments. The Plan Amendments are contained in a three-volume set. The first volume contains Plan Amendments and data and analysis concerning traffic. The second volume contains Plan Amendments and data and analysis concerning the future land use map series, which includes two maps forming the 2010 overlay. The third volume contains Plan Amendments and data and analysis involving general matters. The Plan, as amended by the Plan Amendments, shall be referred to as the Amended Plan. The additional data and analysis submitted by Lee County in September, 1990, shall be referred to as the Revised Data and Analysis. The Original Data and Analysis and Revised Data and Analysis shall collectively be referred to as the Data and Analysis. On or about October 29, 1990, DCA published a notice of intent to find the Plan Amendments in compliance. Petitioner Brenda Sheridan, who is a resident of Lee County, had previously submitted oral or written objections during the review and adoption proceedings concerning the Plan Amendments. On or about November 17, 1990, Petitioner commenced the above-styled case by filing with DCA a petition alleging that the Plan Amendments and Revised Data and Analysis are not in compliance with the Act and Chapter 9J-5, Florida Administrative Code (collectively referred to as the growth management law). Wildlife Habitats and Vegetative Communities (Issues 2 and 6) As to Issue 2, the Revised Data and Analysis contain limited data or analysis pertaining to wildlife habitat and vegetative communities. Much of the data and analysis concerning wildlife habitats and vegetative communities are in the Original Data and Analysis and were unchanged by the Revised Data and Analysis. The Revised Data and Analysis inventory only certain habitats or vegetative communities and analyze the environmental, socioeconomic, and fiscal impacts of development and redevelopment upon only certain unique wildlife habitats. The habitats or communities so considered are only those used by wood storks, Florida panthers, and black bears. The Revised Data and Analysis state: The only documented wood stork rookery in Lee County is on Telegraph Creek. In the past 3 years, no nesting has occurred there. It is possible that they exist in the Flint Pen Strand, adjacent to the Corkscrew Swamp Sanctuary. Corkscrew includes a well-known wood stork rookery. Wood stork productivity is highly variable as a result of annual rainfall amounts which accumulate in South Florida. Flight paths . . . associated with that rookery cross into feeding locations within Lee County. These movements are primarily dependent on food availability. Tall structures placed in this flight path could affect the wood storks. The first monitoring report concerning the impact of WEVU's new broadcast tower on wood storks has been submitted. Every day during breeding season a biological intern has inspected the 60-acre tower site for injured wood storks. No injuries or fatalities were found. Feeding areas of the Corkscrew Swamp colony have been documented in Lee, Collier, and Hendry Counties. Southeastern Lee County provides important forage areas for this colony; occasionally saltwater habitats are also used. These food sources are essential to the success of wood stork reproduction within the colony. Figure IX.C-1 indicates the foraging sites used by wood storks from the Corkscrew Swamp Colony. Lee County wetlands provide significant feeding areas for wood storks. As water levels drop in the winter, fish are trapped in depressions associated with the wetland. These fish become an easy meal for the wood storks. The storks rely on this feeding source for successful breeding and survival. Strict enforcement of strong wetland regulations is the first step to protect this important feeding source. The Lee County Protected Species Ordinance provides the next step in protecting wood stork forage areas. It requires surveys and management plans for the wood storks. Nesting, roosting, and rooking areas are identified in the survey. Preservation of those areas can be accomplished through conservation easements granted to the county. All management plans must follow the Habitat Management Guidelines for the Wood Stork in the Southeast Region, a 1990 publication of the U.S. Fish and Wildlife Service. Of the 20 surveys submitted to date, only one indicated the presence of wood stork areas. Two wood storks were identified off of the property. The management plan associated with this property includes preservation of the wetlands associated with this documented forage site. Joint Exhibit 10.c, page IX-3. Figure IX.C-1 indicates the foraging sites used by wood storks of the Corkscrew Swamp colony from 1985 to 1988. The 30 indicated sites are (with one exception) concentrated in extreme southeast Lee County. All of the area is designated Density Reduction/Groundwater Resource or Resource Protection Areas and Transition Zones. Addressing Florida panthers, the Revised Data and Analysis report: The greatest problems facing panthers are directly related to human intrusion. Habitat loss due to increased development erodes the range necessary for each cat's survival. Florida panthers require extensive and biologically diverse landscapes. Male panthers utilize up to 400 square miles of territory. Biotic systems utilized by the Florida panther include "mixed swamp forests, cypress swamps, sawgrass marshes, mesic hammocks, pine flatwoods, and palmetto prairies." (Maehr, David S., "The Florida Panther and Private Lands.") Uplands are especially critical habitats for Florida panther. The tall palmetto systems which are particularly beneficial to the panther are also particularly prized for agriculture and development. Because of the vast range necessary for the survival of the panther, protection of their habitat cannot be fully accomplished through site design regulations for private development. Large areas need to be acquired, preserved, and managed for the long- term survival of this species. Suitable corridors must also be maintained, either through acquisition or regulations. . . . In recent years, two cats have been documented in Lee County. One travels from Collier County, through the Flint Pen Strand, and north past the Southwest Florida Regional Airport to the Caloosahatchee River. This is a young panther. This movement is reflected in Figure IX.C-2 showing public lands within panther range. The second panther has been documented in Northern Lee County. Its range probably includes portions of Charlotte County. Figure IX.C-3 showing Florida panther range is currently out of date given the known travels of the first panther. The enlargement of this map in Figure IX.C-4 illustrates the importance of the Flint Pen Strand acquisition in the preservation of well-documented panther habitat. Joint Exhibit 10.c, pages IX-5 to IX-6. Figures IX.C-3 and -4 disclose that about 50 square miles of south Lee County serves as known panther habitat, although actual habitat is even greater. The 50-square mile area contains much of the land in Lee County east of I-75 and the headwaters of the Estero River. All of the area is designated Density Reduction/Groundwater Resource or Resource Protection Areas and Transition Zones except for all or parts of six one- mile sections, which are designated Suburban and General (Interchange Area). The Revised Data and Analysis discuss the habitat of black bear: Black bear range requirements are strikingly similar to that of the Florida panther. Like the Florida panther, the adult male will occupy home ranges that are greater than the female; in the case of the black bear, 3 to 8 times greater. The range of the black bear forage area extends anywhere from 40 to 312 square miles. In Lee County, bears are known to exist in the northern and southeastern areas of the county. Bear dens are common in the eastern extent of the Flint Pen Strand acquisition. Black bear are generally more common in the southeastern area of the county (see Figure IX.C-7). Black bears have a diverse diet including acorns, various berries, and insects. Under some circumstances, they may also consume feral hogs and cattle. Consistent with their famous desire for honey, bears are notorious for invading apiaries. This activity causes an obvious conflict between bee-keepers and the bears, as many orange groves currently exist in the northern and eastern areas of the county. More groves are permitted in the area as well. Bears studied in the Ocala National Forest predominantly utilized pine flatwoods for bedding and forage. "Pine flatwoods provide good cover for winter bedding as well as a nearly year-round source of food and water. This habitat type supports a variety of food- producing plans including gallberry, blueberry, and saw palmetto." (Wooding, John B. and Hardisky, Thomas S., Final Performance Report: Black Bear Study, page 18.) Bears studied in [the] Osceola National Forest utilized cypress/bay swamps greatest in the fall and winter. The dense cover and fall food supply are explanations for this use. Black bears are prone to utilize areas which include oak in the autumn to take advantage of acorn production. Oak hammocks provide black bears with dense cover and food during these periods. It appears that black bear hibernate to some degree in south Florida. This period of hibernation is of a shorter duration (2 to 3 months) and the bears are more alert during hibernation than they are in more northern areas. However, building energy stores for the hibernation is still important to the black bear in south Florida. Florida black bear dens are simply beds made of vegetation such as palmetto fronds. They are known to den in a variety of habitats. However, pine flatwoods and cypress swamps would appear to be the most utilized for this area. "It is speculated that Florida black bears have adequate food supplies to reproduce by the age of 3-4 years." (Wooding and Hardisky, page 23.) Black bear road kills have been reported along I-75. These bears were crossing in the vicinity of San Carlos Park. Bears have been sighted in that community and occasionally elsewhere west of I-75. However, I-75 is more typically a barrier to black bear migration to the western half of the county. Preservation of large tracts of unfragmented forests is necessary for the continued survival of black bear in Lee County. Public acquisition of connected forested tracts is an effective way of ensuring habitat preservation for black bear. The Flint Pen Strand acquisition includes the area of most extensive bear denning and bedding in Lee County. Since this area is connected by the Bird Rookery Swamp acquisition to the Corkscrew Swamp Sanctuary, connectivity of preserved land is accomplished. The largest area of land currently under public control in southeastern Lee County is owned by the city of Fort Myers. Their southeast wellfield site encompasses 6 sections and is compatible with the management of black bear. This area is just 2 miles from the Flint Pen Strand acquisition. A link between the two would provide the needed connectivity and should become a priority. Enhancement of large preserved tracts may yield a higher density of bears. This enhancement includes the planting of forage plants and the maintenance of dense vegetation. A burning program that favors the production of soft mast-forming species should be evaluated with consideration of promoting Melaleuca [sic]. Joint Exhibit 10.c, pages IX-6 and -13. Figure IX.C-7 shows that most of the bear use areas correspond to the depicted location of the Florida panther habitat. As to Issue 2, to the extent that the Revised Data and Analysis address vegetative communities and wildlife habitats, Petitioner has failed to prove to the exclusion of fair debate that the Revised Data and Analysis are inconsistent with the criteria of an inventory of existing coastal wildlife habitat and vegetative communities and analysis of the environmental, socioeconomic, and fiscal impacts of development and redevelopment upon unique wildlife habitat. As to Issue 6, the Plan Amendments address to a limited extent regulatory or management techniques for limiting the impacts of development and redevelopment on wildlife habitat. The Plan Amendments address the wood stork and its habitat as follows: Objective 77.10: WOOD STORK. By July, 1991, regulatory measures to protect the wood stork's feeding and roosting areas and habitat shall be adopted and enforced by Lee County. Policy 77.10.1: By December 31, 1990, the Protected Species Ordinance (#89-34) and its administrative code (AC-13-10) shall include wood storks as a Lee County Listed Species, requiring surveys for and protection of wood stork habitat. The county shall maintain an inventory of documented feeding, roosting, and rooking areas for the wood stork to ensure that surveys submitted through the Protected Species Ordinance include such areas. Policy 77.10.2: By December 31, 1990, the county shall require management plans for existing wood stork feeding, roosting, and rooking areas to utilize "Habitat Management Guidelines for the Wood Stork in the Southeast Region" (U.S. Fish and Wildlife Service, 1990). Policy 77.10.3: By July 1991, the county shall provide incentives for the creation of wood stork feeding areas in mandatory littoral shelf design, construction, and planting. These incentives shall include relief from 50% of the shrub requirements in exchange for fish entrapment areas. Policy 77.10.4: By July 1991, the county shall identify wood stork flight patterns from roosting and rooking areas to feeding areas within the county. Regulations protecting significant flight areas shall be adopted by July 1992, restricting the construction of tall structures such as broadcast towers (see Policy 2.1.5). Policy 2.1.5 provides: 25/ * [[After the completion and acceptance of a special study]] <<By July 1991, the county shall complete a special study on locational criteria for tall structures such as broadcast towers. These criteria shall include wood stork flight corridors from roosting and rooking areas to feeding areas as well as airport hazard areas. By July 1992, new>> tall structures such as broadcast towers shall be [[encouraged or]] required to be located in areas identified as appropriate <<after examining the findings of the study (see Policy 77.10.4).>> * Note: In the above quotation, language added to the policy is within the <<>>; deleted language is within the [[]]. Policy 77.10.1 requires Lee County to keep an inventory of wood stork feeding, roosting, and rooking areas to ensure that developer-provided surveys include such areas. The Revised Data and Analysis indicate that the County is already aware of certain of such areas. Policy 77.10.2 requires, by December 31, 1990, Lee County to demand that management plans for existing wood stork feeding, roosting, and rooking areas use regionally applicable U.S. Fish and Wildlife Service guidelines for habitat management. The requirement of management plans arises from the inclusion of wood storks among Lee County Listed Species, as provided in Policy 77.10.1. Policies 77.10.3 and 77.10.4 provide additional protection for wood storks found in Lee County. The Plan Amendments address the Florida panther, black bear, and their habitat as follows: Objective 77.11: FLORIDA PANTHER AND BLACK BEAR. By June 30, 1991, county staff shall develop measures to protect the Florida panther and black bear through greenbelt and acquisition strategies. Policy 77.11.1: County staff, working with the Florida Game and Fresh Water Fish Commission, shall identify known black bear and Florida panther corridors in Lee County. Policy 77.11.2: Criteria developed for ranking land acquisition priorities shall include known panther and black bear corridors. Policy 77.11.3: Lee County shall inform Collier and Charlotte counties as to Lee County corridor acquisition projects to encourage a regional approach to corridor acquisition. Policy 77.11.4: Lee County shall support the acquisition of the Flint Pen Strand through a millage increase of .2 mills over a three-year period. Acquisition of this documented Florida panther and black bear corridor shall be coordinated with the South Florida Water Management District's "Save Our Rivers" program and the state's "Conservation and Recreational Lands" program. Policy 77.11.5: Important black bear and Florida panther use areas shall be identified. Corridors for regulatory and public acquisition purposes shall be designated within these use areas. The corridor boundaries shall include wetlands, upland buffers, and nearby vegetative communities which are particularly beneficial to the Florida panther and black bear (such as high palmetto and oak hammocks). Policy 77.11.6: Florida panther and black bear corridors shall be included in the Protected Species Ordinance (#89-34) management section. Where corridors are purchased (or designated for purchase) adjacent to the development site, then a buffer to the corridor of no greater than 500 feet shall be required. Policy 77.11.7: In any vegetative restoration projects conducted by Lee County for land acquired due to its environmental sensitivity (such as the Six Mile Cypress Strand and the Flint Pen Strand), plant lists shall include species that provide forage for the prey of the Florida panther and forage for the black bear. The Plan Amendments also modified another policy contained in the Plan: Policy 77.4.1: Identify, inventory, and protect flora and fauna indicated as endangered, threatened, or species of special concern in the "Official Lists of Endangered and Potentially Endangered Fauna and Flora of Florida," Florida Game and Fresh Water Fish Commission, as periodically updated. <<Lee County's Protected Species Ordinance (#89- 34) shall be enforced to protect habitat of those listed species found in Lee County that are vulnerable to development. There shall be a funding commitment of one full-time environmental planner to enforce this ordinance through the zoning and development review process.>> Although not further described in the Amended Plan, the Protected Species Ordinance, which is not part of the Amended Plan, is addressed in the Revised Data and Analysis: The Protected Species ordinance (#89-34) was adopted by the Lee County Board of County Commissioners on August 31, 1989, and became effective on September 1, 1989. The ordinance was the first in the nation to require a survey for listed species habitat and a management plan for proposed development sites. The survey method is delineated to ensure a proper survey is performed. This survey is only required for those vegetative communities known to harbor listed species from the "Official Lists of Endangered and Potentially Endangered Flora and Fauna of Florida" of the Florida Game and Fresh Water Fish Commission. Once the listed species are identified, a number of regulatory tools are used to preserve the nesting, feeding, and "other use" areas. These tools include the transfer of density on-site, use of open space requirements, and credits toward regional park impact fees. * * * The ordinance is being administered to allow maximum development flexibility while preserving listed species habitat. Joint Exhibit 10.c, page IX-1. Added by the Plan Amendments, Objective 17.4 states: NATURAL RESOURCES. County regulations, policies, and discretionary actions shall permit no further degradation of estuarine and wetland resources and no unnecessary loss of native upland vegetation and wildlife habitat. Although unaffected by the Plan Amendments, other provisions of the Amended Plan address wildlife habitat and identifies techniques for limiting the impacts of development and redevelopment upon important vegetative communities. These provisions state: Goal 77: RESOURCE PROTECTION. To manage the county's wetland and upland ecosystems so as to maintain and enhance native habitats, floral and faunal species diversity, water quality, and natural surface water characteristics. Objective 77.l: RESOURCE MANAGEMENT PLAN. By 1991 the county shall adopt a resource management plan that will ensure the long- term protection and enhancement of the natural upland and wetland habitats through the retention of interconnected, functioning, and maintainable hydroecological systems where the remaining wetlands and uplands function as a productive unit resembling the original landscape. Policy 77.l.l: The county shall designate a natural resource management agency with responsibilities including: Identifying upland and wetland habitats/systems most suitable for protection, enhancement, reclamation, and conservation. Recommending standards to the Board of County Commissioners for Board approval for development and conservation that will protect and integrate wetlands (Resource Protection Areas and Transition Zones), and significant areas of Rare and Unique upland habitats (RU) as indicated in the Lee County Coastal Study, including but not limited to: sand scrub (320); coastal scrub (322); those pine flatwoods (411) which can be categorized as "mature" due to the absence of severe impacts caused by logging, drainage, and exotic infestation; slash pine/midstory oak (412); tropical hardwood (426); live oak hammock (427); and cabbage palm hammock (428). The numbered references are to the Florida Land Use Cover and Forms Classification System (FLUCFCS) Level III (FDOT, 1985). Preparing standards for wetland and rare and unique upland mitigation. Preparing a prioritized listing of wetlands, rare and unique uplands, and critical endangered and threatened species habitat properties for possible acquisition. Recommending a plan for eradicating and controlling problematic exotics Melaleuca, Schinus, and Casuarina with the highest priority placed on preventing new or accelerated infestations in wetlands and rare and unique upland habitats. Maintaining a central clearinghouse for all environmental studies and recommendations by both public and private organizations. Completing the mapping of the hydrological boundaries and habitats of each coastal watershed that extend landward of the coastal area study boundary. Preparing recommendations for maintaining or restoring the desired seasonal base flows and water quality into the coastal zone after reviewing monitoring data. Coordinating the preparation of plans with the municipalities, South Florida Water Management District, and Southwest Florida Water Management District to better control flows of freshwater and reduce pollutant discharges into the Lee County coastal waters. Regularly updating the Level III maps and database of the Coastal Study to reflect the existing conditions following each aerial photography overflight of the county. Providing an annual report to the county commission on the status of wetlands, native uplands, and rare and unique habitats. The report should focus on the adequacy of the land use regulations and management plan to protect and enhance these natural systems. Adjustments should be made in the regulatory process to address whatever deficiencies are noted. Objective 77.2: PLANT COMMUNITIES. By 1991, Lee County will have completed an inventory of natural plant communities and will adopt a program to protect at various suitable locations remnant tracts of all important and representative natural plant communities occurring within Lee County. Policy 77.2.1: Establish a coordinated natural resources information exchange program with state and regional agencies. Policy 77.2.2: Prevent incompatible development in and around areas that have been identified as unique or important natural plant communities. Policy 77.2.3: Prevent water management and development projects from altering or disrupting the natural function of significant natural systems. Policy 77.2.4: Encourage the protection of viable tracts of sensitive or high-quality natural plant communities within developments. Policy 77.2.5: Prepare and adopt regulations to control the clearing of natural vegetation except where and when needed for permitted development. Policy 77.2.6: Avoid needless destruction of upland vegetation communities including coastal and interior hammocks through consideration during the site plan review process of alternative layouts of permitted uses. Policy 77.2.7: Specify in the development regulations where inventories and assessments of the impacts of development in environmentally sensitive lands and Rare and Unique upland habitats shall be required. Policy 77.2.8: Promote the long-term maintenance of natural systems through such instruments as deed restrictions, covenants, easements, transfer of development rights, restrictive zoning, and public acquisition. Policy 77.2.9: Identify possible programs which would help to eradicate noxious plant species and/or non-native plant species from environmentally critical areas and Rare and Unique upland habitats, and implement pilot programs. Incentives such as density bonuses may be considered. Policy 77.2.10: Development adjacent to aquatic and other nature preserves, wildlife refuges, and recreation areas shall protect the natural character and public benefit of these areas including, but not limited to, scenic values for the benefit of future generations. Policy 77.2.11: The planting of Brazilian Pepper, Melaleuca, and Australian Pine is prohibited in order to prevent the spread of these noxious species. Policy 77.2.12: Lee County shall protect its natural resources by encouraging and cooperating with the local Mosquito Control District to employ the maximum feasible use of natural biological agents to control injurious insects. Objective 77.3: WILDLIFE. Maintain and enhance the current complement of fish and wildlife diversity and distribution within Lee County for the benefit of a balanced ecological system to which man is inexorably linked. Policy 77.3.1: Encourage upland preservation in and around preserved wetlands to provide habitat diversity, enhance edge effect, and promote wildlife conservation. Policy 77.3.2: Develop a plan to establish wildlife corridors in order to help to maintain regional species viability and diversity. Policy 77.3.3: Adequate safe passage for wildlife under or across new and reconstructed roads shall be provided where appropriate. Objective 77.4: ENDANGERED AND THREATENED SPECIES IN GENERAL. Lee County will continue to protect habitats of endangered and threatened species and species of special concern in order to maintain or enhance existing population numbers and distributions of listed species. * * * Policy 77.4.2: Conserve critical habitat of rare and endangered plant and animal species through development review, regulation, incentives, and acquisition. Policy 77.4.3: Require detailed inventories and assessments of the impacts of development where it threatens habitat of endangered and threatened species and species of special concern. Policy 77.4.4: Restrict the use of critical habitats to that which is compatible with the requirements of endangered and threatened species and species of special concern. New developments shall protect remnants of viable habitats when listed vegetative and wildlife species inhabit a tract slated for development, except where equivalent mitigation is provided. Objective 77.5: LOGGERHEAD SEA TURTLES. By the beginning of the 1989 nesting season (May 1), establish a program to minimize the disorientation of hatchling sea turtles along the Gulf beaches. Policy 77.5.1: The sea turtle protection program shall include at least the following activities: Prepare a guide for homeowners and builders which explains the detrimental effects of night-time beachfront lighting on hatchling sea turtles. Examine public light sources (streetlights, security lights, beach access lights, etc.) and prepare a plan to minimize the amount of harmful light from such sources onto the beach during the nesting season. Conduct an educational program to persuade residents to reduce lighting levels on the beach and to publicize other hazards to turtles from activities of people, pets, and vehicles. Encourage electrical suppliers and lighting dealers to stock special fixtures which reduce the negative effects of beachfront lighting. Develop an ordinance which controls the installation of new light fixtures which could shine on the beach, and which encourages or requires that existing lights be shielded or turned off during the nesting season. Determine whether certain areas of the beachfront are not used by sea turtles for nesting and should therefore not be subject to the same restrictions. Objective 77.6: SOUTHERN BALD EAGLES. During 1989, amend the county's ordinance protecting southern bald eagle habitat to provide an optimum mix of incentives and regulations for protecting buffer areas around nests. Policy 77.6.l: Maintain a policy of negotiations with owners of land surrounding eagle nests to provide an optimal management plan for land subject to imminent development. Policy 77.6.2: The county Eagle Technical Advisory Committee shall complete by the end of 1989 an assessment of all eagle nests in Lee County, and shall prepare proposed guidelines for each nest. Policy 77.6.3: The Committee shall also prepare management guidelines to inform land owners and the general public of proper practices to minimize disturbances to eagle nests. Objective 77.7: WEST INDIAN MANATEES. Minimize injuries and mortality of manatees to maintain the existing population by encouraging the adoption by the state of Florida and local governments of regulations to protect the West Indian Manatee in the Caloosahatchee and elsewhere in Lee County. During 1990, manatee management plans will be prepared for other waters of Lee County also frequented by manatees. Policy 77.7.1: Characterize and map important manatee habitats; identify and evaluate potential threats to important habitats; and consider management agreements to protect such habitats. Policy 77.7.2: Identify areas of greatest actual or potential boat/barge mortality and/or injury by December 31, 1990, and establish slow or idle speed zones. Policy 77.7.3: Inform and educate the public through sign posting, lectures, and regulations about manatee protection. Policy 77.7.4: Educational materials regarding manatees should be disseminated to boaters and warning signs placed in areas where both manatees and humans congregate. Policy 77.7.5: Construction and expansion of multi-slip docking facilities and boat ramps shall be encouraged in locations where there is quick access to deep, open waters where the associated increase in boat traffic will be outside areas of high manatee concentration. Policy 77.7.6: Rezoning and DRI applications for marinas and boat ramps shall be evaluated in the context of cumulative impacts on manatees and marine resources. Policy 77.7.7: State, local, and private interests shall work in cooperation to develop and implement area-specific manatee protection plans. Policy 77.7.8: By October 1, 1991, the county shall provide a permanent funding source to assist the Florida Department of Natural Resources in enforcement of such manatee protection plans as may be adopted. Objective 77.8: GOPHER TORTOISES. During 1989, determine the suitability of publicly owned property for the relocation of gopher tortoises. Policy 77.8.1: The county's policy is to protect gopher tortoise burrows wherever they are found. However, recognizing that there occasionally are unavoidable conflicts which require the relocation of gopher tortoises, the suitability of alternate sites should be evaluated as to --physical suitability of the site for the gopher tortoises; --long-term protection of the land; --conflicts with other management objectives for the land; and --costs that would be incurred by the relocation. Objective 77.9: RED-COCKADED WOODPECKER. By 1990, county staff will prepare a list of best management practices for the red- cockaded woodpecker's habitat. Policy 77.9.1: County staff will note and document other possible red-cockaded woodpecker sites during routine site inspections. As to Issue 6, to the extent that the Plan Amendments address the identification of regulatory or management techniques for limiting the impacts of development and redevelopment on wildlife habitat, Petitioner has failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the criterion of a policy identifying such regulatory or management techniques. Future Land Use Map Series (Issues 3, 4, 5, 7, and 11) Issues 5, 7, and 11 As to Issue 11, the future land use map series, which includes the 2010 overlay, reflects a planning timeframe of 20 years. The schedule of capital improvements covers a five-year timeframe. Petitioner argues in her proposed recommended order that the Amended Plan uses inconsistent timeframes, such as those mentioned above, as well as timeframes of five years for potable water and sewer, less than 10 years of need for potable water wellfield protection, and one year for mass transit. Different timeframes may be appropriate for different projected items because of the varying amounts of available data and analysis for different items, varying planning requirements in the growth management law concerning different items, and varying degrees of predictability for different items. As to Issue 11, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the criterion of two planning timeframes. As to Issue 5, nothing in the Plan Amendments or Revised Data and Analysis identifies potable water wellfields or their cones of influence. Map 8 of the Amended Plan identifies the cones of influence surrounding depicted wellfields and indicates that it was "as adopted [on] January 31, 1989." Map 8 obviously was part of the Plan and was unchanged by the Plan Amendments. The extensive amendments and revisions concerning the new 2010 overlay, the Density Reduction/Groundwater Resource designation, related Plan Amendments, and the data and analysis underlying these operative provisions do not provide a basis for Petitioner's assertion that the future land use map series fails to identify potable water wellfields permitted to pump less than one million gallons per day and their cones of influence. Issue 5 is directed toward the Plan, not the Plan Amendments. As to Issue 7, nothing in the Plan Amendments or Revised Data and Analysis involves densities in the coastal high hazard area, except to the extent that the 2010 overlay may reduce such densities by limiting residential uses when compared to the original 70-year future land use map. 26/ Issue 7 is directed toward the Plan, not the Plan Amendments. Issues 3 and 4 Overview As to Issues 3 and 4, the Plan Amendments substantially changed the future land use map series by the addition of the 2010 overlay and related text. However, except for the introduction of the new Density Reduction/Groundwater Resource designation, the Plan Amendments, including the 2010 overlay, did not substantially alter the types of land uses permitted by the future land use map series in the Plan. The 2010 overlay and related text address the timing of land uses by limiting the amount of land that may, prior to 2010, be devoted to the uses designated by the future land use map in the Plan. Issues 3 and 4 generally raise the issue whether the Plan Amendments, including the amended future land use map series, are supported by data and analysis. Because the Plan Amendments and the amended future land use map series do not generally change the uses that are ultimately to be allowed in an area, the Plan Amendments and amended future land use map series are not implicated by allegations that the amended future land use maps are not consistent with soils, topography, and floodplains. For the same reason, the Plan Amendments and amended future land use map series do not play a significant role in determining whether land use designations for specific areas, such as North Bonita Springs, are supported by data and analysis. However, as explained below, the Plan Amendments, including the amended future land use map series, directly affect the amount of land that will be available for designated uses by 2010. Based on the findings contained in the following sections, the designations contained in the amended future land use map series--even as limited by the 2010 overlay--lack support from data and analysis in two crucial respects. The first deficiency is that the density allocations are not supported by data and analysis. The second deficiency involves all designations, not just residential designations expressed in terms of densities. The second deficiency contains two parts. First, the existing land use baseline data are omitted from the Amended Plan and Data and Analysis. Second, the County has yet to design a reliable process for updating the available baseline existing land use data. The determination whether the density allocations in the amended future land use map series are supported by data and analysis begins with consideration of the ratio of the maximum population accommodated by the Amended Plan for the planning timeframe divided by the projected population at the end of the planning timeframe. The resulting ratio is not itself determinative of the issue whether data and analysis support the density designations in a comprehensive plan. A wide range of density allocation ratios may be calculated for the same plan. There are a variety of reasonable assumptions and adjustments, especially for reducing the maximum population accommodated by the plan. Also there are a range of reasonable density allocation ratios. A density allocation ratio represents a rough calculation of the relationship between the amount of land needed for residential uses during the planning timeframe compared to the amount of land so designated during the planning timeframe. If the ratio is relatively high, there is a greater chance that the plan may not facilitate the efficient use of land or the efficient provision of public facilities, especially if the spatial distribution of densities and textual plan provisions do not tend to achieve these objectives. In any event, a density allocation ratio is an important factor in determining whether data and analysis support the density designations contained in a comprehensive plan. As explained below, the Data and Analysis contain a critical adjustment by which the maximum densities permitted in the Amended Plan are reduced to reflect historic densities--by an unstated amount and according to an incompletely described methodology. The second deficiency concerning supporting data and analysis undermines residential, commercial, industrial, and other designations. The baseline existing land use data are omitted from the Amended Plan and Data and Analysis, and the process by which existing land uses will be updated is uncertain and unreliable. The 2010 overlay is meaningless without these data. As described below, the 2010 overlay divides the County into numerous subdistricts. The 2010 overlay limits development in each subdistrict to a maximum acreage for each land use category. The acreage limitations represent total acreage, which consists of the acreage of existing land uses that preexisted the implementation of the 2010 overlay and the acreage of land use authorized pursuant to, and following, the implementation of the 2010 overlay. The baseline data missing from the Amended Plan and Data and Analysis are the acres of each existing land use for each subdistrict. The absence of such data from a readily available source such as the Amended Plan or Data and Analysis undermines effective implementation of each of the designations contained in the 2010 overlay. Although the evidence indicates that the County has adequate baseline existing land use data, such data, for the reasons set forth in the Conclusions of Law, must be included in the Amended Plan or the Data and Analysis because of its indispensable role in the implementation of the 2010 overlay. Neither the Amended Plan nor the Data and Analysis identify the process by which Lee County will update the baseline existing land use data. Evidence at the final hearing revealed serious deficiencies in the updating process, which requires the County to extrapolate from traffic data and analysis the ongoing incremental acreage increases of land use, rather than track the increases as they are authorized in a more straightforward fashion. Thus, concerning the second deficiency, the designations contained in the 2010 overlay are supported by data and analysis only to the extent of: 1) a clearly ascertained baseline, in terms of acres of existing land uses by category for each planning subdistrict, set forth in the Amended Plan or the Data and Analysis and 2) the identification of a reliable means of determining the incremental acreage increases authorized by the County for each land use category for each planning district following the implementation of the 2010 overlay. 2. How the Amended Future Land Use Map Series Works The primary component of the future land use map series Map 1, which is a future land use map containing 18 future land use designations. Map 1 projects land uses through buildout of the entire County, or about 70 years. Map 1 was contained in the Plan and was not changed by the Plan Amendments, except for the addition of the 2010 overlay and the Density Reduction/Groundwater Resource designation. The Plan Amendments added Maps 16 and 17 to the future land use map series. Maps 16 and 17 constitute the 2010 overlay. Map 16 divides the entire County, including the three municipalities, into 115 planning subdistricts. Map 17 is not a map, but is a series of bar graphs depicting acreages for seven land use categories: residential, commercial, industrial, parks and public, active agriculture, conservation, and vacant and passive agriculture. The regulatory concept of the 2010 overlay is to prohibit, prior to 2010, the issuance of "final development orders or building permits" for any future land use designation once the subdistrict has attained the acreage specified for that type of land use by Map 17. Joint Exhibit 10.b, page 3. This concept is implemented by Policy 1.1.1, which provides: The Future Land Use Map contained in this element is hereby adopted as the pattern for future development and substantial redevelopment within the unincorporated portion of Lee County. <<Maps 16 and 17 are an integral part of the Future Land Use Map series (see Policies 1.7.6 and 2.2.2). They depict the extent of development through the year 2010. No final development orders or building permits will be issued by Lee County which would allow the acreage totals for any land use category on these maps to be exceeded.>> The cities of Fort Myers, Cape Coral, and Sanibel are depicted on [[this]] <<these>> maps only to indicate the approximate intensities of development permitted under the comprehensive plans of those cities. Residential densities are described in the following policies and summarized in Table l. The Revised Data and Analysis explain that the purpose of the 2010 overlay is to make the 70-year future land use map in the Plan "even more useful as a decision-making guide by providing a 20-year horizon in addition to its present longer- term horizon." Joint Exhibit 10.b, page 1. The Revised Data and Analysis elaborate: The addition of a 20-year horizon (i.e., to the year 2010) to the map series is an effort to project and monitor land development quantitatively on a small area basis and over a relatively shorter period of time, thus improving the county's ability to coordinate zoning, impact fees, and other development regulations with the planning and programming of public facilities and services. Joint Exhibit 10.b, page 2. Assumptions, Data, and Methodologies Applicable to 2010 Overlay Density Allocations: Assumptions and Data Map 1 and the 2010 overlay are based on the 1987 University of Florida high-range population projections for 2010. Joint Exhibit 10.b, page 4. Residential projections are based on peak or seasonal populations, which are permanent populations plus 18%. Joint Exhibit 10.b, page 4, and County Exhibit 1.B, page V-7. Populations are converted to dwelling units by assuming that 2.01 persons occupy each dwelling unit. Id. The population figures typically include Ft. Myers, Cape Coral, and Sanibel, not merely unincorporated Lee County. 27/ Other important assumptions identified in the Revised Data and Analysis are that there will be no net loss of wetlands, the density allocations will reflect the new Groundwater Resource/Density Reduction designation with a density of one dwelling unit per 10 acres (1:10), the Mid-Point Bridge will be built by 2000, all but one of the transportation projects shown on the Interim Traffic Circulation Plan Map will be finished by 2010, and the "state road network" will be enhanced by the Traffic District Program and Interim/Operational Improvement Program for backlogged roads and Operational Improvement Program for constrained roads. 28/ Joint Exhibit 10.b, pages 4-5. Another key assumption involves adjustments to the designated densities authorized in the comprehensive plans of Ft. Myers, Cape Coral, and Sanibel. Acknowledging that Lee County lacks planning jurisdiction over these municipalities, the Revised Data and Analysis nonetheless reveal that Lee County made "some adjustments" to their growth trends. In other words, in determining the densities to use for the 2010 population that could be accommodated by the cities' plans, Lee County chose not to rely on the maximum densities indicated by the future land use designations given vacant residential acreage on each city's future land use map. Instead, as it did for the unincorporated County, Lee County reduced the maximum densities in the cities' plans to account for historic buildout densities. Joint Exhibit 10.b, page 3. Density Allocations: Methodology Noting that the 2010 overlay is not a "textbook planning concept," the Revised Data and Analysis acknowledge that the 2010 overlay required an "innovative methodology," which, due to time constraints, could not be fully documented in the Revised Data and Analysis. Joint Exhibit 10.b, page 3. Instead, the Revised Data and Analysis provide only a "brief explanation" of the methodology. Id. Section III of the Revised Data and Analysis for the Future Land Use Element 29/ describes the methodology underlying the County's estimate of the builtout capacity of the land. In this analysis, the County reduces maximum densities permitted under the Amended Plan to reflect anticipated actual densities. This adjustment is intended to reflect the historic buildout factor in Lee County, which generally resulted in involved lower densities in urban areas and higher densities in rural areas than are designated in the Amended Plan. The Revised Data and Analysis explain that the Original Data and Analysis used 1981 data and analysis of then-existing vacant land, including platted but vacant lots. The vacant acreage was then tabulated by land uses identified within the Plan. The Revised Data and Analysis add: By adding the 1981 dwelling unit count to a reasonable projection of future housing densities on the "vacant" acreage, an estimate was made of the build-out capacity of the unincorporated area as shown in the Lee Plan's land use map. The process by which vacant acreage was converted to dwelling units is partly described, at least to the extent of several assumptions. The following percentages were deducted from the vacant acreage for the following uses: commercial--8%; major collector and arterial roads--5%; educational facilities- -2%; and community and regional parks--1%. Another 10,000 acres were deducted from the vacant acreage for industrial uses. The percentage reductions for commercial and industrial future land uses were based on studies by the independent planning consultant who was involved in the preparation of Map 1 and the 2010 overlay. Joint Exhibit 10.b, page 6. The deductions for commercial and industrial acreage allotments, as described in this paragraph, are reasonable and supported by data and analysis. 30/ The Revised Data and Analysis, as well as the Original Data and Analysis, mention adjustments that Lee County made to its analysis of the capacity of residential development authorized by the Amended Plan. By these adjustments, the County attempted to show where commercial and industrial uses would preempt residential uses. Although the methodology of the adjustments is not disclosed, they appear to represent a reasonable attempt to avoid the unrealistic land use planning assumption that commercial and industrial uses would be scattered equally throughout the parts of the County where they are authorized under the Amended Plan. The Revised Data and Analysis next break down the acreage of each future land use designation into 15 planning districts and 115 planning subdistricts. Table 1 (III C) beginning on page 8 of Joint Exhibit 10.b provides acreages for each of the 15 planning districts on three tables: one for Lee County in its entirety, one for unincorporated Lee County, and one for the three municipalities. Table 2 (III C) breaks down the acreages by planning subdistrict. The acreages in Tables 1 (III C) and 2 (III C) do not correspond to the acreages shown in Map 17 and Table 3 (V G). 31/ The differences are not indicative of deficient data and analysis. Tables 1 (III C) and 2 (III C) represent interim stages of the process by which Lee County developed the 2010 overlay and, as such, do not provide acreages on which density allocations may be calculated. However, Tables 1 (III C) and 2 (III C) do not suggest that the final acreage figures in Map 17 and Table 3 (V G) represent the maximum densities or population allowed in the Amended Plan without reduction for historic densities. To the contrary, the Revised Data and Analysis indicate that the preparation of Table 2 (III C) allowed "the input of expected densities." Joint Exhibit 10.b, page 7. Unlike Table 3 (V G) or Table 1 (III C), Table 2 (III C) contains a column entitled, "Buildout Assumptions." One part of the Buildout Assumptions column is "percent residential." The adjustment for percent residential appears to be based on the above-described deductions for commercial and industrial allotments. In any event, the adjustment represents a reasonable projection as to what portions of land designated residential will necessarily be devoted to other uses, such as commercial and industrial. The other part of the Buildout Assumptions column in Table 2 (III C) is "dwelling units per acre," which appears to represent adjusted projections based on historic buildouts. The maximum densities for each category allowed by the Amended Plan are invariably equal to or (more often) higher than the dwelling units per acre contained in the Buildout Assumptions. 32/ The Revised Data and Analysis revise Section V(G) of the Original Data and Analysis. This section is entitled "Future Land Use Needs for the Year 2010." The new section addresses exclusively residential development. Table 2 (V G) in the new section lists by planning subdistricts the number of dwelling units in 1987, the number of dwelling units projected for 2010, and the number of dwelling units projected at buildout. In introducing Table 3 (V G), the Revised Data and Analysis note that the projected number of dwelling units for 2010 (presumably from Table 2 (V G)) was translated to acreage by "taking the number of acres in each land use category in each district and allocating the residential units projected for 2010 at the density factor (number of units per acre) allowed in the land use category." Joint Exhibit 10.b, page 37. However, the acreage allotments in Table 3 (V G), which are the same as those in Map 17, reflect historic density adjustments, rather than unadjusted applications of the maximum densities authorized in the Amended Plan. For the purpose of calculating density allocation ratios in determining whether the designated densities are supported by data and analysis, there is no justification for failing to disclose information necessary to calculate the maximum population that can be accommodated by the Amended Plan. 33/ For the purpose of calculating density allocation ratios in determining whether the designated densities are supported by data and analysis, there is no justification for reducing the maximum population that can be accommodated by the Amended Plan by an undisclosed amount to reflect historic buildout densities. The purpose of Map 1 was to depict the land uses in Lee County at buildout, which was estimated to be about 70 years. This 70-year future land use map was to facilitate end-state public facility planning by assisting the County and private utility companies in determining where to locate and how to size public facilities so as to accommodate the builtout population of Lee County. Projecting actual buildouts for end-state public facility planning requires an adjustment based on historic densities. But the present determination is whether the densities authorized by the Amended Plan are supported by data and analysis. This determination requires consideration of the effectiveness of the future land use map series as a regulatory device to assist the Amended Plan in achieving consistency with applicable criteria of the growth management law. To a large extent, any regulatory purpose for Map 1 was frustrated by the fact that, in 1989, it made available for immediate development (subject to concurrency) all of the land that would be needed for various uses by 2060. The 70-year planning timeframe meant that Map 1 designated amounts of land for various uses that were grossly in excess of that which was needed in 1989 or even 2010. To this extent, the 70-year future land use map did not facilitate effective land use planning. The sole purpose of the 2010 overlay is to shorten the planning timeframe of Map 1 from 70 year to 20 years. The shorter planning timeframe is more meaningful for land use planning, as well as facility planning in the interim. Although the 2010 overlay clearly strengthens the future land use map series as a regulatory device, the question still remains whether even the reduced densities designated by the map series are supported by data and analysis. The calculation of a density allocation ratio is part of the determination whether data and analysis support the residential densities in a plan. The analysis misses the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities. The question is whether the densities authorized by a plan are supported by data and analysis, not whether data and analysis support densities somewhere between the maximum authorized densities and historic densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures. Although there is some flexibility in calculating and interpreting density allocation ratios, the reduction of maximum densities allowed in the Amended Plan by an undisclosed amount and by an incompletely explained methodology frustrates the purpose of comprehensive land use planning. The purpose of the density allocation calculation, as part of the process of determining if the plan is supported by data and analysis, is not to predict the actual density that will occupy the planning jurisdiction at buildout. The purpose of the density allocation calculation is to compare the maximum density allowed by the plan with the projected population and consider the extent of the overallocation in light of other factors in the planning jurisdiction, including plan provisions and relevant data and analysis. The ratio is not required to be 1:1 to satisfy the criterion of supporting data and analysis. But the ratio must be ascertainable in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis. By failing to disclose either the maximum population that can be accommodated by the Amended Plan or even the bases upon which such maximum densities could be derived, Lee County has implicitly and--at times--explicitly demanded undue deference to its above-described density analyses. Nothing in the record warrants such deference. Although Lee County has made considerable progress in regulating land uses since first adopting zoning in 1962, sprawling, low-density residential monoliths already occupy much of the landscape in Lee County. Two such areas are Lehigh Acres and Cape Coral, the latter of which has now been incorporated. These inefficient land use patterns, which are a large part of Lee County's historic densities, generally exceed rural densities but do not attain urban densities. Lee County confronts a serious challenge from the massive tracts of prematurely (and in some cases unsuitably) platted lots, as well as the ongoing pressure to continue such inefficient and costly land use practices. The Original Data and Analysis note that "vacant zoning together with platted lands could accommodate over 218,700 units or 518,000 people in the unincorporated area alone" and that the "pace of rezoning, often with speculative intent, has not lessened appreciably since that time." County Exhibit 1.B, Future Land Use Element Data and Analysis, page V-1. The Original Data and Analysis observe that Lee County in its entirety contains 480,458 platted lots covering over 153 square miles. Although it is not entirely clear that all of these lots are vacant or preplatted, a considerable number of them are. Most of the lots are in Lehigh Acres (132,512 lots) and Cape Coral (287,869, but deed restrictions require two lots for one homesite.) Only 3768 lots are considered nondevelopable. County Exhibit 1.B, Future Land Use Element Data and Analysis, page I-1. The Revised Data and Analysis argue that Lee County should be accorded greater planning flexibility than should other local governments in Florida due in part to its "large concentrations of pre-platted lands." The other reasons cited to justify special treatment are the presence of three independent municipalities, a multiplicity of private sewer and water systems lacking centralized control, a complicated land and water configuration, a strong wetlands protection program, a large regional airport, existing and future DRI's, and an "historical pattern of decision-making that has created land use expectations which, in the aggregate, are difficult to reverse and require care and sensitivity in so doing." Joint Exhibit 10.b, page 2. With the exception of the strong wetlands protection program, if one were to exist, the cited factors at best cut both ways in terms of whether, under the growth management law, a local government facing such challenges requires greater planning flexibility. The pre-platted lands factor militates against greater planning flexibility, as these vacant lots represent a potential liability that threaten the viability of a local government's comprehensive plan. Following the discussion of Tables 1 (III C) and 2 (III C), the Revised Data and Analysis admit: The above analysis helps to explain the inability of Lee County and private sector utility companies to provide infrastructure to all of the future urban areas shown on the future land use map. Those services that involve major expenditures for site-specific capital improvements (such as sewer lines, water lines, and major roadways) are the major components of local governments' expenses in providing for new growth; yet they are the very services which are difficult to provide economically when a large supply of land is provided for development. Joint Exhibit 10.b, page 7. The Revised Data and Analysis identify several factors that militate in favor of abandoning the stricter regulatory land-use controls introduced by the 1984 comprehensive plan. 34/ These factors are the presence of numerous private utility suppliers over which Lee County has no regulatory control; the "existing pattern of development within unincorporated Lee County [involving] numerous physically scattered communities of widely varying character," which renders attempts to apply a "single concept" of urban services across a wide spectrum of communities "inappropriate" and "financially infeasible" both as to existing and future development; the unsuccessful implementation of flexible planning strategies in the 1984 plan, such as planned unit developments in which developers and landowners provide a full range of urban infrastructure without expense to Lee County; and, "[p]erhaps the most difficult issue. . . in implementing the 1984 Lee Plan," the "lack of total commitment to the policy of allowing urban-scale development [over 1:1] only where a commitment was actually being made to provide an urban level of infrastructure." Elaborating on the last factor, the Revised Data and Analysis add: "The future land use map has often been seen as just another obstacle rather than as a vehicle towards the creation of desirable development patterns." Joint Exhibit 10.b, pages 30-31. Again, the cited factors do not militate in favor of more relaxed regulatory land-use practices to achieve consistency with the criteria of the growth management law. Addressing the 2010 overlay and the projected population that it is intended to accommodate, the Revised Data and Analysis contend: [DCA] has tried to rigorously defend the concept of enforcing a future land use map having an approximate capacity equal to the projected growth of the county over a given (typically, 20-year) period. This is not possible in Lee County where existing platted and sold lots greatly exceed the 20-year period. In addition, it is also important to know where and how growth will occur well beyond the conventional timeframe of a comprehensive plan. Joint Exhibit 10.b, page 31. However, the Revised Data and Analysis acknowledge the drawbacks of reliance upon a future land use map with a 70-year planning timeframe. The cited disadvantages include the increased likelihood of changes in designations over the intervening 70 years (as compared to shorter periods like 20 years); the premature conversion of agricultural and vacant land to residential uses due to designations that, in 1990, presently permit land uses that will accommodate all projected urbanization through the year 2060; and the possibility that actual population growth will not attain projected population growth, which would result in an even more scattered development pattern that would further increase the cost of servicing the scattered population with required public facilities and services. The Revised Data and Analysis frankly concede that "there is no easy way to exit from the present dilemma." Joint Exhibit 10.b, page 32. A "wholesale rollback" of existing future urban areas, though simple, "would inevitably diminish development rights previously granted by Lee County." The prime examples of previously granted development rights are the "hundreds of thousands of [already-sold] platted lots" and "numerous large-scale developments which have recently been approved based on the existing Lee Plan . . .." Id. Acknowledging the obvious, the Revised Data and Analysis admit that the preceding analysis "indicates clearly that the development potential shown on the Future Land Use Map is greater than the projected population for the year 2010." Id. The Revised Data and Analysis list five steps that Lee County has taken to "bridge the gap between the adopted [70- year] future land use map and the desirability of a 20-year map." Joint Exhibit 10.b, page 32. These steps are reserving about one-third of the Future Urban Areas for privately funded infrastructure; substantially reducing the total acreage of land, including coastal ares designated urban in the 1984 plan; adopting impact fees for fire protection and emergency medical services; adopting the 2010 overlay; and adopting the new Density Reduction/Groundwater Resource designation to reduce densities in sensitive areas to 1:10. As noted above, the encouragement of privately funded infrastructure has not enjoyed much success in Lee County. As noted below, the adoption of the Density Reduction/Groundwater Resource designation with a low density of 1:10 over thousands of acres of the County allows a real separation of urban and rural uses. But, as noted in this section of the recommended order, data and analysis do not support the density designations in the 2010 overlay and thus the question remains open whether even the reduced densities authorized by the 2010 overlay are supported by data and analysis. Baseline and Updated Existing Land Use Data: Data, Assumptions, and Methodology Lee County possesses the baseline data for existing land uses by each land use category for each subdistrict. Lee County's Growth Management Director William Spikowski testified that the County possessed sufficient, baseline existing land use data, broken down by land use category and subdistrict, as of 1987. Tr., page 122. There is no basis in the record for discrediting the 1987 baseline data, 35/ but, for the reasons discussed in the Conclusions of Law, the criterion of supporting data and analysis requires in this instance that such crucial baseline data be included in the Data and Analysis (or the Amended Plan, if the County prefers). For the faster-growing subdistricts, these baseline data were updated to 1990, which is when the 2010 overlay was adopted. Id. The record does not support the finding that, to the exclusion of fair debate, any problems exist with respect to the one-time 1990 update of the baseline data, which may have been produced by the independent consultant who prepared the commercial and industrial studies and initiated Map 1 and the 2010 overlay. The point at which the 2010 overlay finds no support from the data and analysis is in the updating of the existing land use data from the 1987 (or 1990, where applicable) baseline data. The 115 planning subdistricts in Map 16 are formed out of over 800 traffic analysis zones. Part of the reason for using the traffic analysis zones was the detailed data available for small areas of the County. When confronted with the necessity of calculating exactly how much land remains in a specific subdistrict for a specific use, the County has a very poorly defined process whose results are unreliable. The updating process does not involve tracking actual land areas authorized for development in a specific land use under the 2010 overlay. Instead, the County reverts to traffic data, employs undisclosed conversion factors, and reaches a result that may or may not measure the extent of the development that it has authorized in the subdistrict under the 2010 overlay. The conversion process is unreliable and, even if it were reliable, may be measuring merely actual uses, but not already-authorized uses not yet in existence. The unreliability of the updating process by which authorized development under the 2010 overlay is measured was disclosed in the testimony of Mr. Spikowski. The relevant portion of the transcript reads: Q: Okay. Where would I find the--just the vacant acreage that you're proposing to allow to be developed? A: The exact inventory is what I discussed as what we want to have--be able to take off the property appraiser's records for each parcel so that we can have a constantly updated figure. We don't have that available. . . . Tr., page 1294. After discussing a recent rezoning request that evidently involved commercial uses, possibly as part of a mixed- use project, Mr. Spikowski explained that the County elected to do a manual count of existing land uses rather than rely on the traffic data and use a conversion factor. Mr. Spikowski testified in relevant part: A: . . . instead of using the information we used, which is the 1987 inventory done for the traffic model where we had to use conversion factors to take employees back to acres, the right thing to do in that case was to do a manual count, to do what we want to do on the computer. And maybe week after next we're going to have the capability to do that. It had to be done manually. Because we had base projections in here based on the inventory for the '87 traffic model, but it was calculated for commercial based on number of employees, because that's what the traffic model wanted. For us to use it in the overlay we had to convert that back to acres using standard conversion factors, which introduces an element of error. So before you would use this overlay as a regulation of telling somebody they cannot use their land, you really would need to manually check it. Whether that goes to the property appraiser records for those sections or estimate of aerial photography with the Plan amendment, or either way would work. We tried both methods. Q: I really can't do--take the documents that are in evidence and do this calculation because I can't tell what is existing? A: You would have to--If you take the documents in evidence, I believe you'd have to assume that the conversion factors that are county-wide averages are correct for that subdistrict. And again, for general planning purposes we were comfortable doing that, also knowing that we were getting this new system to do it automatically. This is one of the regulatory flaws of the 2010 overlay and that's why it's become so hated in the development community. They say, if you can't give us the exact amount, how can you expect us to live with it? Tr, pages 1294-97. The record is otherwise devoid of evidence describing the methodology by which the acreage allotments by subdistrict will be updated. The role of Map 17, as described by Policy 1.1.1, is to ensure that the County will not authorize development that would exceed relevant acreage totals. There are absolutely no data or analysis supporting the crucial updating process. Nothing in the Amended Plan or the Data and Analysis prevents the County from, if it so chooses, using traffic data (which may possibly ignore authorized uses that have not yet placed vehicles on the road), converting employees to acres by some undisclosed formula (or perhaps residents to acres through the undisclosed historic density adjustment), and determining that the development would not exceed the acreage allotment. It is to the County's credit that, in the rezoning application described by Mr. Spikowski, it manually determined existing land uses in the affected subdistrict to determine if additional acreage were available. This is the "right thing to do" for using the 2010 overlay "as a regulation." But the 2010 overlay is unsupported by data and analysis unless the County restricts itself to a reliable updating process. The alternative updating process, which is based on converted traffic data, cannot be found, on basis of this record, to be any more reliable than reading owls' entrails. The Amended Plan or Data and Analysis must assure that the County will adhere to more reliable means of measuring interim increases in land uses authorized under the 2010 overlay. Even if the County implements a computer- assisted reading of updated property appraiser records, questions remain concerning, for instance, the accuracy of such records as measurements of the extent of development authorized by the County pursuant to the 2010 overlay and the frequency with which these measurements must be updated in order to ensure that acreage allotments are not exceeded. These matters must be described either in the Amended Plan or the Data and Analysis for the designations contained in the 2010 overlay to find support in the data and analysis. As to Issues 3 and 4, for the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the Maps 1, 16 and 17 of the amended future land use map series are not supported by data and analysis. Transportation (Issues 8 and 9) With five exceptions not material to this case, Policy 21.1.1 adopts the Metropolitan Planning Organization's (MPO) 2010 Financially Feasible Map as the Interim Traffic Circulation Plan Map. This color map is Map 3 in the Amended Plan. Policy 21.1.5 explains that the future traffic circulation map series consists of Map 3, the MPO 2010 Needs Plan (Map 4), and a map of ports, airlines, and rail lines (Map 13). The Plan Amendments completely revised Policies 21.1.1 and 70.1.3.6, which adopt minimum peak hour/peak season level of service standards 36/ for roads in Lee County. The adopted level of service standard is D for freeways, such as I-75, and principal arterials under state jurisdiction other than US 41. The Amended Plan assigns a level of service E to all other roads, which are County arterials and collectors, and state minor arterials and others, as well as US 41. Concerning constrained roads, Policy 22.1.3 provides: <<Due to scenic, historic, environmental, aesthetic, and right-of-way characteristics and considerations, Lee County has determined that certain roadway segments will not be widened. Therefore, reduced peak hour levels of service will be accepted on those constrained roads as a trade-off for the preservation of the scenic, historic, environmental, and aesthetic character of the community. These constrained roads are defined in Table 2(b). Growth on those constrained roads will be permitted only within the volume-to-capacity (v/c) ratios established in this plan and only if consistent with the Operational Improvement Program for those constrained roads.>> Table 2(b) identifies nine state and County road segments that are constrained. Policy 22.1.9 sets a maximum volume-to-capacity ratio of 1.85:1 and prohibits the issuance of additional permits for development affecting the constrained segment once that ratio has been reached. Policy 22.1.10 establishes an Operational Improvement Program for each constrained segment. There is no evidence that Lee County has identified as constrained road segments roadways for which capacity-enhancing projects are not appropriately limited by scenic, historic, environmental, aesthetic, or right- of-way factors. Petitioner has failed to prove to the exclusion of fair debate that the treatment of constrained roads in the Amended Plan is inconsistent with any of the criteria of the growth management law. Table 2(a) identifies 26 state and County road segments that are backlogged. The treatment of backlogged roads in the Amended Plan is much more elaborate. Even though these road segments do not, by definition, meet the minimum level of service standards otherwise adopted in the Amended Plan for roads of their functional classifications, the Amended Plan requires neither the addition of greater transportation capacity in the affected area nor the cessation of development impacting the affected area. Instead, the Amended Plan offers a two-part alternative. Under the Traffic District Program, a backlogged road segment may be viewed in the context of a much larger area. Pursuant to the Interim/Operational Improvement Program, interim operational improvements may be undertaken, but are not required to restore the subject road segment to its otherwise applicable level of service standard. As to Issue 8, the Traffic District Program in particular has a clear impact on the consistency of the Amended Plan and Plan Amendments with the criteria of setting level of service standards for roads, ensuring concurrency for roads, and correcting infrastructure deficiencies regarding roads. Policy 22.1.2 states: <<The minimum acceptable levels of service specified in Policy 22.1.1 shall not apply on an interim basis to the backlogged roads identified in Table 2(a). It is the County's intent that those segments will be improved to the identified standard in the shortest period possible, but no later than December 31, 1999. During that interim period, however, growth on those backlogged roads may be permitted if it is consistent with the Traffic District Program (Policy 22.1.5) and Interim/Operational Improvements Program (Policy 22.1.6).>> Policy 22.1.5 provides: <<A Traffic District Program is hereby established for purposes of determining allowable development affecting backlogged roads. On at least an annual basis, Lee County shall estimate the service volumes for all City, County and State collectors, arterials and freeways within each traffic district, and shall determine the district- wide service volume surplus or deficiency. Development permits that affect a backlogged road may still be approved provided that the surplus service volume resulting from the existing surplus service volume, any service volume increases due to committed roadway improvements, and any service volume increases due to interim improvements (reported as a percent of existing service volume on a district basis) is equal to or exceeds the annual percent increase in traffic on a traffic district basis. However, such permits will be issued only if mitigation is provided in accordance with Policy 22.1.13. In the event that the percent service volume growth identified above on a traffic district basis is less than the percent traffic growth in that district, no permits will be issued by Lee County for development that affects the backlogged segment. Such development will be permitted only if capacity enhancement and/or operational improvements are programmed for implementation within the specific District so that the total service volume growth for the District will again be equal to or greater than the District traffic growth. Growth on non-backlogged roads will not be affected. Development that does not affect the backlogged segment will still be allowed. For purposes of calculating service volumes for the Traffic District Program, the following rules apply: Constrained roads (see Table 2(b)) will not be included in the determination of traffic growth and percent service volumes. Percent traffic growth will be based on the last full year of traffic count information. Committed roadway improvements for purposes of this calculation are those improvements under a current construction contract.>> Policy 22.1.6 states: <<For the identified backlogged roads (see Table 2(a)), and as any additional backlogged roads may emerge over time, an Interim/ Operational Improvement Program will be established. The Interim/Operational Improvement Program will include the following types of improvements: Phased improvements, representing a staged implementation of the eventual improvement that is needed to return the backlogged road to the minimum acceptable level of service. Operational improvements, representing short-term measures to improve traffic operations and expand capacity prior to the eventual roadway improvement.>> <<The initial Interim/Operational Improvement Program for backlogged roads is identified in Table 2(c).>> <<On an annual basis, a minimum of five backlogged roads will be studied in detail by Lee County with specific interim/operational improvements identified. Specific interim/ operational improvements shall be incorporated into the County's Capital Improvements Program. Initially, six backlogged roads have been studied in detail including portions of US 41 South, US 41 North, McGregor Boulevard, Gladiolus Drive, San Carlos Boulevard, and Metro Parkway. The selection of specific interim/operational improvements to be constructed in any given year may be adjusted as deemed necessary by Lee County to reflect developer funding opportunities, adjustments to construction schedules, other agency improvement projects and schedules, and alternative improvements of a comparable nature. Specific interim/ operational improvements shall be included in all following updates of the County's Capital Improvements Program to ensure the expeditious construction of those improvements.>> Policy 22.1.8 assures that, "[a]fter December 31, 1999, Lee County shall measure concurrency on all roads on a roadway segment-by-segment basis rather than using the Traffic District Program contained in this plan." Policy 22.1.13 provides: <<All proposed development activity, as part of the concurrency management process, will be reviewed against the Traffic District Program, the Interim/Operational Improvement Program for backlogged roads and the Operational Improvement Program for constrained roads. Development activity affecting backlogged and constrained roads will be required to mitigate its traffic impacts: For that development activity determined not to affect a backlogged and/or constrained road segment, traffic mitigation will consist of payment of Roads Impact Fees and needed intersection improvements at the site entrance(s). For development activity determined to affect a backlogged and/or constrained road segment, traffic mitigation may include, but not necessarily be limited to, the following: Advanced, lump sum payment of Roads Impact Fees to Lee County; Developer construction or financing, with Lee County approval, of one or more of the interim or operational improvements identified in the Interim/Operational Improvement Program for backlogged roads or the Operational Improvement Program for constrained roads; Developer prepares, with Lee County approval, a detailed Interim/Operational Improvement Program for the affected road(s) and funds one or more of the needed interim or operational improvements; and Developer funding of needed road improvements.>> <<Lee County's Concurrency Management Ordinance shall be amended prior to the end of 1990 to specify the impact mitigation procedure and threshold measurements for mitigation purposes.>> The establishment of the Traffic Districts for backlogged roads is left to the Revised Data and Analysis. At page VI-7 of Joint Exhibit 10.a is a map dividing Lee County into nine traffic districts. Six districts cover the entire mainland. The districts approximate the preexisting districts created by Lee County in the implementation of its traffic impact fee program. The service/traffic formula does not operate in isolation. As noted above, the Interim/Operational Improvement Program also requires developer- provided mitigation. However, the required mitigation does not require the developer to restore the road segment to its otherwise applicable adopted level of service standard and may not even affect the road segment impacted by the proposed development. More importantly, the service/traffic formula requires little of the County in addressing the problem of backlogged roads before 2000. A graph on p. VI-10 of Joint Exhibit 10.a provides the necessary data to calculate the service/traffic formula to determine if, under this formula, Lee County would likely be precluded from issuing final development orders due to the presence of backlogged roads. A sample calculation on p. VI-6 of Joint Exhibit 10.a illustrates the calculation. As noted on the graph, the service/traffic formula is inapplicable to two of the island traffic districts, which contain only constrained roads. The service/traffic formula, as a practical matter, eliminates the possibility of concurrency-imposed limitations on development due to the enforcement of level of service standards on nonconstrained roads in any of the six mainland districts. The reason is the vast difference--in each district-- between existing service volume and traffic volume. But this difference bears no relationship to the fact that many road segments are already operating below their otherwise applicable level of service standards and that, under the Traffic District Program, many more road segments, not presently backlogged, will also operate below their otherwise applicable level of service standard prior to 2000. Assuming the same annual increase in traffic volume as presently exists for each mainland district, the service/traffic formula would not require Lee County to build or commit to build any road improvements for over 10 years in Districts 1, 2, 5, and 8, six years in District 4, and seven years in District 3. In other words, the service/traffic formula allows Lee County to continue to issue final development orders impacting backlogged road segments and causing more road segments to become backlogged for at least six years anywhere on the mainland and over 10 years for most of the mainland--even in the absence of any capacity- enhancing transportation improvements. The combination of the service/traffic formula and the vast areas covered by the mainland districts allow the perpetuation of congested conditions on nonconstrained roads in Lee County. The Traffic District Program, including the service/traffic formula, renders completely meaningless the adopted level of service standards for nonconstrained roads and concurrency as it applies to nonconstrained roads. The formula and program also relieve Lee County of any obligation to correct transportation infrastructure deficiencies, or even address such deficiencies. The above-stated findings apply even if Table 2(a) and other provisions of the Amended Plan effectively limited the number and length of backlogged road segments to those listed on Table 2(a). Even worse, however, the Amended Plan does not so limit backlogged roads, and Table 2(a) is merely descriptive of road segments that were backlogged when the Plan Amendments were adopted. As contemplated by the first clause of Policy 22.1.6, "additional backlogged roads may emerge over time." This possibility is repeated in the Revised Data and Analysis, which concede that "backlogged and constrained roads may be added to the list over time." Joint Exhibit 10.a, page VIII-5. By effectively ignoring existing backlogged roads and allowing more roads to become backlogged, Lee County has deferred the adoption of level of service standards and postponed concurrency until the year 2000 when the Traffic District Program ends. When a road segment falls below its otherwise applicable standard, the effect of the Traffic District Program and Interim/Operational Improvement Program is to override concurrency by allowing development impacting the affected road segment to proceed without regard to the availability of capacity-enhancing transportation improvements sufficient to restore the affected roads to their otherwise applicable level of service standards. The short-term prospects for roads in Lee County are discussed in the Revised Data and Analysis. In its discussion of existing roads, the Revised Data and Analysis note: The rapid growth in Lee County's population during the past several years has been accompanied by even more rapid growth in traffic volumes on Lee County roads. According to the [FDOT] . . ., traffic volumes (daily vehicle miles traveled) in Lee County increased by 126 percent from 1979 to 1987, the second highest rate of growth in the State of Florida. This rapid growth in traffic is expected to continue. . . . Generally, historic road construction has not kept pace with traffic growth. However, Lee County has recently embarked on an ambitious roadway improvement program and the pace of construction has accelerated in recent years. Joint Exhibit 10.a, page IV-1. The discussion of the existing road network adds that the existing plus committed roadway network includes major roadway improvements programmed by State and local governments for construction through 1994. Addressing backlogged roads, the Revised Data and Analysis state: Despite the accelerated roadway construction activity in Lee County, many road segments are becoming increasingly congested. Several already meet or exceed the level of service standards established in the Lee Plan. . . . Joint Exhibit 10.a, page V-1. The Revised Data and Analysis describe two exhibits displaying information about traffic volumes. Exhibit V-1 analyzes 1989 traffic volumes with the existing road network. Exhibit V-3 analyzes 1994 traffic volumes with the existing plus committed road network, which reveals that several backlogged segments from Exhibit V-1 have been eliminated and several new backlogged segments have been added. The Revised Data and Analysis explain that Exhibit V- 7, which lists all of the backlogged roads on Table 2(a), shows which backlogged roads will be "relieved to some extent by committed improvements." Joint Exhibit 10.a, page V-3. The Revised Data and Analysis acknowledge that "there are no major improvements programmed for several backlogged roads in Lee County." Id. Exhibit V-1 shows that, for 1989, there were 26 backlogged road segments for a total of 27.3 miles. 37/ Of these, 18 segments for 18.2 miles were under state jurisdiction, rather than County jurisdiction. Exhibit V-3 shows that, for 1994, based on the existing plus committed road network, there will be 28 backlogged road segments for a total of 34.2 miles. The total for state backlogged roads is projected to rise even more rapidly: 22 road segments for a total of 29.4 miles. As indicated by the text, Exhibit V-7 shows that several backlogged roads listed in Table 2(a) are not scheduled to receive committed improvements (presumably through 1994). Recommended improvements to eliminate backlogged conditions (Joint Exhibit 10.a, page VII-4) are shown on Exhibit VII-7. However, nothing in the Amended Plan commits the County to undertaking these projects. The purpose of Exhibit VII-7 is to show the work needed over a ten-year period to restore backlogged roads to their otherwise applicable level of service standards. Some of the projects would be outside of the five-year period covered by the schedule of capital improvements on page VII-21 of the Amended Plan. But, in addition to the fact that Lee County does not commit itself in the Amended Plan to undertaking this work, nothing in Exhibit VII-7 addresses those road segments that become backlogged at a later date. As to Issue 8, Petitioner has proved to the exclusion of fair debate that, as to all nonconstrained roads not under the jurisdiction of any municipality, the Amended Plan is inconsistent with the criteria of setting level of service standards, ensuring concurrency, and correcting existing infrastructure deficiencies. As to Issue 9, Petitioner argues that the Plan Amendments regarding transportation are not financially feasible because the capital improvement schedule does not identify a current source of funding for all of the road improvements described in the Plan Amendments as "necessary or desirable." It is not entirely clear what Petitioner means by road improvements that are described as "necessary or desirable." These words correspond to the MPO Needs Plan and MPO Financially Feasible Plan. Of course, these plans, which are adopted in the Amended Plan as Maps 4 and 3 respectively, pertain to the year 2010, and the five-year capital improvements schedule properly pertains only to 1995. Petitioner may mean by "necessary and desirable" that the road projects do not adequately address backlogged roads, so as to allow the Traffic District Program to attain consistency. This issue has been addressed in connection with Issue 8. Except to the extent that the financial feasibility of transportation improvements has been addressed in connection with Issue 8, Petitioner has failed to prove to the exclusion of fair debate that the transportation capital projects are inconsistent with the criterion of financial feasibility. Miscellaneous Minimum Criteria (Issues 1, 10, and 12) As to Issue 1, nothing in the Plan Amendments or Revised Data and Analysis addresses directly the issue of private potable water suppliers. The Plan Amendments create a new future land use category, Density Reduction/Groundwater Resource. The Revised Data and Analysis discuss four studies or reports focusing on the aquifers in Lee County and aquifer recharge areas. But the focus of these material is general and on hydrogeologic supplies, rather than on the specific entities presently involved in producing potable water. As to Issue 10, nothing in the Plan Amendments or Revised Data and Analysis addresses coordination between Lee County and its Amended Plan and the Charlotte Harbor Management Plan. However, the separate issue whether the Plan Amendments are consistent with the provisions of the Charlotte Harbor Management Plan is addressed below. As to Issue 12, the only provisions amended by the Plan Amendments are Policies 2.2.2 (primarily third factor and flush language), 15.2.2, 38.1.6, 38.4.1, and 38.4.3, as well as the 2010 overlay. The remaining objectives and policies were unchanged by the Plan Amendments. Policy 2.2.2 states: Map 1 of Tthe Future Land Use Map <<series>> indicates the uses and density ranges that will ultimately be permitted on a given parcel. However, it is not a guarantee that such densities or uses are immediately appropriate, as the map provides for the county's growth over the coming 70 years. During the rezoning process the Board of County Commissioners will balance the overall standards and policies of this plan with [[two]] <<three>> additional factors: --whether a given proposal would further burden already overwhelmed existing and committed public facilities such that the approval should be delayed until the facilities can be constructed; <<or>> <<--whether a given proposal is for land so far beyond existing development or adequate public facilities that approval should be delayed in an effort to encourage compact and efficient growth patterns.; or>> <<--whether a given proposal would result in unreasonable development expectations which may not be achievable because of acreage limitations on the "Year 2010 Overlay" (see Policy 1.7.6 and Maps 16 and 17).>> <<In all cases where rezoning is approved, such approval does not constitute a determination that the minimum acceptable levels of service (see Policy 70.1.3) will be available concurrent with the impacts of the proposed development. Such a determination must be made prior to the issuance of additional development permits, based on conditions which exist at that time, as required by Lee County's concurrency management system.>> The 2010 overlay designates the proposed location of various future land uses in Lee County. Map 1 shows where certain land uses may generally be located for the next 70 years. Maps 16 and 17 limit these land uses for the next 20 years and, to some extent, show where these land uses may be permitted during that timeframe. Although the specific locations of land uses prior to 2010 are not disclosed by Maps 16 and 17, the generalized locations are. There is nothing vague or ambiguous in Policy 2.2.2. Misciting Policy 2.1.2 as Policy 2.2.2, Petitioner argues in her proposed recommended order that certain language is vague, but she did not plead Policy 2.1.2, which, in any event, was unchanged by the Plan Amendments. Objective 15.2 provides: COMMUNITY FACILITIES. Within funding constraints, the county shall attempt, during 1989, 1990, and 1991, to incorporate the following recommendations of the ad-hoc Bonita Study Group into the planning process for public facilities. Policy 15.2.2 states: <<IRRIGATION WELLS. Bonita Springs (as defined in this plan) is hereby declared a critical area for future potable water supply, based on evidence that withdrawals from the main potable aquifer, the lower Tamiami aquifer, are approaching or exceeding the maximum safe yield. In response to this designation, the county shall amend current regulations to provide that new irrigation well permits in Bonita Springs may not utilize the main potable water source. (Also see Policy 32.1.9 for new permit requirements for wells in Lehigh Acres, and Policy 2.4.3 for special requirements for amendments to the Future Land Use Map.)>> Policy 15.2.2 is not vague, nor does Petitioner argue grounds for vagueness as to Policy 15.2.2 in her proposed recommended order. Policy 38.1.6 provides: <<Within one year after the adoption of this policy, Lee County shall amend its land development regulations to require that proper stormwater management systems be installed when land is being redeveloped. Appropriate exemptions shall be provided to this requirement for individual residential structures and for historic districts. The regulations may also provide modified stormwater management standards for publicly sponsored projects within community redevelopment areas (as defined by Chapter 163, Part III, Florida Statutes). However, this policy shall not be interpreted so as to waive any concurrency level-of-service standards.>> Petitioner argues in her proposed recommended order that the words "proper," "appropriate," and "modified" lack sufficient definition so as to render Policy 38.1.6 vague and ineffective. The terms are sufficiently definite to provide enforceable guidance to the County in the adoption of implementing land development regulations. The word "proper" incorporates the stormwater level of service standards stated at Policy 38.3.1. The word "appropriate" applies to reasonable exceptions to the stormwater level of service standards for individual residences and historic districts. The word "modified" creates a reasonable exception to the stormwater level of service standards for publicly sponsored community redevelopment areas. There are communities in Lee County, such as Harlem Heights, where the housing is seriously substandard and the community is eligible for publicly sponsored redevelopment, as well as interim assistance through such projects as Habitat for Humanity. Evidently due to relatively low elevations, at least when the housing is compared to adjacent roadways, the Harlem Heights community also suffers from a seriously inadequate (and possibly nonexistent) stormwater management system. Ideally, all areas within Lee County should be subject to, and receive the benefits of, effective stormwater management. However, communities desperately in need of publicly funded redevelopment, such as Harlem Heights, present a special challenge. As a practical matter, the treatment of publicly sponsored projects within community redevelopment areas by Policy 38.1.6 represents a fair accommodation of competing policy demands in providing stormwater management and decent, affordable housing. Objective 38.4 states: <<CRITICAL AREAS. The Six Mile Cypress Basin (as defined in Ordinance #83-5 as amended) and the Density Reduction/Groundwater Resource land use category are both identified as "critical areas for surface water management." By December 31, 1990, the county shall adopt additional regulations to protect the unique environmental and water resource values of these areas.>> The policy cluster under Objective 38.4 provide: <<Policy 38.4.1: The county shall amend the Six Mile Cypress Ordinance to reduce or eliminate the exemptions allowable in the ordinance.>> <<Policy 38.4.2: The county shall conduct public hearings to consider amending the boundaries of the Six Mile Cypress Ordinance to include all land within the Density Reduction/Groundwater Resource land use category.>> <<Policy 38.4.3: The county shall amend the Wetlands Protection Ordinance (#86-31), the Tree Protection Ordinance (#86-34), and the Development Standards Ordinance (#82-42 as amended) to reduce or eliminate the exemptions for agricultural uses and small subdivisions within the "critical areas for surface water management" and shall subject these uses to an appropriate review process.>> The Revised Data and Analysis explain that Lee County has adopted over the years various environmental ordinances, including the Six Mile Cypress Ordinance, Wetlands Protection Ordinance, Tree Protection Ordinance, and Development Standards Ordinance. The Revised Data and Analysis note that exemptions have been adopted that can reduce the effectiveness of these ordinances in "'critical areas for surface water management.'" Joint Exhibit 10.c, page VI-2. Reviewing the exemptions to the Six Mile Cypress Ordinance, the Revised Data and Analysis observe that the exemptions should be revised so that, under the ordinance, the County must "consider all impacts to surface water flow." Joint Exhibit 10.c, page VI-3. As for the Wetlands Protection Ordinance, the Revised Data and Analysis conclude that its expansion "is probably necessary to limit the impact of clearing of wetlands for agricultural purposes." Id. The Revised Data and Analysis observe that amending the Tree Protection Ordinance would reduce incentives to remove trees and understory vegetation, which assist in water quality and quantity considerations in stormwater management. The Revised Data and Analysis note that the Development Standards Ordinance exempts small subdivisions, whose impervious surfaces alter surface water flow. Petitioner correctly argues in her proposed recommended order that the reduction or elimination of exemptions by an unstated amount or without regard to a stated objective is vague and ineffective. However, the assurances involve only land development regulations that, in the context of a limited plan- amendment challenge, do not play a significant role in the outcome of the case. The vagueness is thus harmless. Contrary to Petitioner's assertions, the 2010 overlay is not confusing, nor does it fail to depict the general distribution, extent, and location of the required land use categories. Although more conventional future land use maps are more precise in rendering the location of future land uses, the imprecision of the 2010 overlay is not inconsistent with the criteria of the growth management law. As noted above, the shortcomings of the 2010 overlay result from the lack of crucial supporting data and analysis. Internal Consistency (Issue 13) Issue 13 alleges that the Amended Plan is internally inconsistent. Petitioner argues that the Traffic Circulation Element and transportation improvements contained in the five-year schedule of capital improvements are inconsistent. She also argues that Goal 2, which requires financial feasibility, and the Traffic Circulation Element, including the financially feasible transportation map, are inconsistent. She asserts the same grounds as she does in connection with Issue 9, which has been discussed above. Based on the findings set forth in connection with Issue 9, and subject to the findings set forth in connection with Issue 8, Petitioner has failed to prove to the exclusion of fair debate any inconsistency between the Traffic Circulation Element and Goal 2 or the transportation improvements contained in the five-year schedule of capital improvements. As noted above, Policy 1.7.6 requires that final development orders and building permits be consistent with the 2010 overlay, including Map 17. Policy 1.7.6 does not impose this requirement upon rezonings. Petitioner asserts that Policy 1.7.6--particularly its omission of rezonings--is inconsistent with Objectives 2.1 and 2.2, Goal 12, and Section XIII(a) of the Amended Plan. Petitioner argues in her proposed recommended order that Policy 1.7.6 is inconsistent with Objectives 2.1 and 2.2 because of the emphasis on zoning in the two objectives. The objectives state: DEVELOPMENT LOCATION. Contiguous and compact growth patterns shall be promoted through the rezoning process to contain sprawl, minimize energy costs, conserve land, water and natural resources, minimize the cost of services, and reverse typical development patters where large tracts of land are bypassed in favor of development more distant from services and existing communities. DEVELOPMENT TIMING. Direct new growth through the rezoning process 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. Goal 12 is: "To ensure that appropriate water, sewer, traffic, and environmental review standards are considered in reviewing rezoning applications and are met prior to issuance of a county development order." Section XIII(a) of the Amended Plan adds in part: "Upon adoption of this amended plan, all development and all actions taken in regard to development orders shall be consistent with the plan as adopted." Given the subordinate role of zoning to the designations contained in the Amended Plan and future land use map series, the conflicts perceived by Petitioner either do not exist or, if they exist, are harmless. The Amended Plan governs. Zoning is of such inferior importance that any conflict will be resolved in favor of the Amended Plan. Petitioner has therefore failed to prove to the exclusion of fair debate that Policy 1.7.6 is inconsistent with Objectives 2.1 and 2.2, Goal 12, and Section XIII(a). Petitioner asserts that Policy 2.2.2 and Section XIII(a) are inconsistent. As noted above, Policy 2.2.2 identifies the factors that will govern rezonings. This policy explicitly subjects rezoning to the concurrency requirements of the Amended Plan. Nothing in this policy attempts to allow rezoning to override the acreage allotments contained in the 2010 overlay and implemented by Policy 1.1.1. Although it would have been preferable for Policy 2.2.2 to acknowledge the acreage allotments as limitations upon land uses that can be authorized, the subordinate role of zoning, as compared to land use designations in the comprehensive plan, emerges clearly from the Amended Plan as a whole. Petitioner has therefore failed to prove to the exclusion of fair debate that Policy 2.2.2 and Section XIII(a) are inconsistent. Petitioner alleges that the amended future land use map is inconsistent with Goals 71, 75, 77, and 79; Objectives 2.3, 74.1, 75.1, 77.3, 77.4, 79.1, and 87.1; and Policies 77.2.2, 77.4.4, 77.11.5, and 83.1.4. Goal 71 is to: "To protect the public from the effects of natural and technological hazards through county emergency plans and programs." Objective 74.l provides: ENVIRONMENTALLY CRITICAL AREAS. By 1990, land within coastal area environmentally critical areas, including present Resource Protection Areas and Transition Zones and Rare and Unique upland habitats, shall be regulated and managed so as to conserve and enhance the natural functions of these critical areas. Goal 75 is: "To protect human life and developed property from natural disasters." Objective 75.l adds: DEVELOPMENT IN HAZARD AREAS. Development (other than minor structures) within the V Zones shall not be allowed seaward of the Coastal Construction Control Line as it exists in 1988; new development on barrier islands shall be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion shall not be permitted; and allowable densities for undeveloped areas within A Zone areas will be considered for reduction. Goal 77, Objectives 77.3 and 77.4, and Policies 77.2.2, 77.4.4, and 77.11.5 have been set forth above. 38/ Goal 79 is: "To provide evacuation and shelter capabilities adequate to safeguard the public against the effects of hurricanes and tropical storms." Objective 79.l adds: EVACUATION. By 1995, evacuation times will be restored to 1987 levels using the 1987 Southwest Florida Regional Hurricane Plan Update as guidance; and by 2010, the clearance time portion of evacuation time will not exceed 18 hours. Policy 83.1.4 provides: Lee County shall protect and conserve the following environmentally sensitive coastal areas: wetlands, estuaries, mangrove stands, undeveloped barrier islands, beach and dune systems, aquatic preserves and wildlife refuges, undeveloped tidal creeks and inlets, critical wildlife habitats, benthic communities, and marine grass beds. Objective 87.1 states: WATER SUPPLIES. Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems. Petitioner argues in her proposed recommended order that the future land use map series is inconsistent with Goals 71 and 75 because the Amended Plan increases densities in the hurricane vulnerability zone in the North Bonita Springs area and fails to coordinate land use designations with evacuation times and shelter space capacities. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Goals 71 and 75. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 74.1, which requires the County, by 1990, to "conserve and enhance the natural functions" of environmentally critical areas in the coastal area. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objective 74.1, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 74.1. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 75.1, which requires the County to consider reducing allowable densities in the hurricane vulnerability zone. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 75.1. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Goal 77, which requires the County to manage the County's wetland and upland ecosystems so as to maintain and enhance native habitats, floral and faunal diversity, water quality, and natural surface water characteristics. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Goal 77, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Goal 77. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objectives 77.3 and 77.4, which require the County to "maintain and enhance" current fish and wildlife diversity and existing populations and distributions of listed species. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objectives 77.3 and 77.4, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objectives 77.3 and 77.4. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Policies 77.2.2, 77.4.4, and 83.1.4, which call for the protection of unique or important natural plant communities, protection of critical habitats for the preservation of listed species, and protection of critical wildlife habitats in the coastal area, respectively. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with these policies, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by these policies. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Policy 77.11.5, which provides in part: "Corridors for regulatory and public acquisition purposes shall be designated in [black bear and Florida panther] use areas." Added by the Plan Amendments, Policy 77.11.5 is not inconsistent with the Plan Amendments concerning the future land use map series. The orientation of Policy 77.11.5 is prospective and does not require immediate implementation through amendment of the future land use map series to show corridors that are subject to additional regulatory controls or are eligible for public acquisition. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 79.1, which requires the County, by 1990, to restore evacuation times to 1987 levels by 1995 and to ensure a maximum clearance time of 18 hours by 2010. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 79.1. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 87.1, which requires the County, by 1990, to ensure sufficient quantity and quality of water to meet present and projected demands of all consumers and the environment. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objective 87.1, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 74.1. Consistency with Charlotte Harbor Management Plan (Issue 14) The Charlotte Harbor Management Plan, which was adopted June 5, 1981, is a resource management plan prepared and adopted pursuant to Section 380.045, Florida Statutes. Lee County is within the jurisdiction of the Charlotte Harbor Management Plan. Under "regulatory actions," there are 12 objectives in the Charlotte Harbor Management Plan. Beneath each objective are implementation actions that pertain to specified federal, state, regional, and local agencies. Twenty-two implementation actions apply to local governments, such as Lee County. Objective 4 of the Charlotte Harbor Management Plan provides: "Future development in floodplain areas is to occur only in a manner consistent with the function of floodplains." In her proposed recommended order, Petitioner argues that the Amended Plan lacks specific provisions identifying the functions of floodplains and requiring new development to be consistent with floodplain functions. Petitioner also argues that the Amended Plan fails to coordinate densities and intensities with tidal floodplains. Except for the stormwater level of service standard, which is discussed below in connection with Objective 5, nothing in the Amended Plan directly addresses floodplains. The floodplain map--Map 9--was part of the future land use map series in the Plan and was unchanged by the Plan Amendments. In general, Petitioner argues only that the Amended Plan fails to deal effectively with floodplain issues. The Plan Amendments substantially change designated land uses by applying the new Density Reduction/Groundwater Resource designation to thousands of acres in the County. The correspondingly reduced densities and restricted intensities, especially as compared to previously authorized land uses, are much more consistent with floodplain functions. Objective 5 of the Charlotte Harbor Management Plan requires: "The stormwater and drainage systems of the Charlotte Harbor area are to function in a manner that protects and preserves the Charlotte Harbor estuarine system." The second implementation action under Objective 5 requires local governments to: establish plans and regulations requiring post development runoff conditions to approximate the natural surface water flow in terms of rate, quality, hydroperiod, and basin. The summary of the problem addressed by Objective 5 states: Improperly designed and maintained stormwater/ drainage systems have affected the quality and quantity of freshwater flowing into area water bodies. These systems have transported various pollutants, including nutrients, sediments, pesticides, heavy metals, and animal waste to local waters. While some of these waters have recognized water quality problems, most of the area's valuable water resources are still of good quality. However, with an expected doubling of population in the next twenty years, preventative action is necessary to prevent further degradation. In addition to the quality of freshwater inflows, the sufficient quantities of freshwater corresponding with the natural hydroperiod are necessary to maintain the productivity of the estuaries. While the flows necessary to meet estuarine needs are unknown, continued development of stormwater/ drainage systems which alter the rate and hydroperiod of runoff may adversely impact estuarine productivity. Petitioner Exhibit 2, page 5. Objective 38.3 of the Amended Plan is to "[r]evise by 1994 the surface water management level-of-service standards for basins and sub-basins identified in the Surface Water Management Master Plan." The Surface Water Management Master Plan was to have begun in 1989, according to Policy 38.1.1. Policy 38.3.1 of the Amended Plan provides: As an interim measure, the following surface water management standards are adopted as minimum acceptable levels of service for unincorporated Lee County . . .: <<Existing>> [[Public]] Infrastructure The [[public stormwater]] <<existing>> [[trunk]] <<surface water>> management system <<in any basin>> in the unincorporated areas of the county, [[including drainage districts]] shall be sufficient to prevent the flooding of <<designated evacuation routes (see Map 15) from the 25-year, 3-day storm event (rainfall)>> [[the public roads to a depth of 12 inches or greater]] for more than [[3 consecutive days]] <<24 hours>>. Regulation of Private <<and Public>> Development Surface water management systems in <<new>> private <<and public>> developments <<(excluding widening of existing roads)>> shall <<be designed to detain or retain excess stormwater to match the predevelopment discharge rate for>> [[meet or exceed]] the <<25-year, 3-day storm event (rainfall)>>. [[minimum standards of the South Florida Water Management District as set forth in the Permit Information Manual, Volume IV, Management and Storage of Surface Water (West Palm Beach, 1986), as may be amended from time to time, and shall meet local regulations in order]] <<This standard is designed>> to minimize <<increases of>> discharges to public water management infrastructure (or to evapotranspiration) that exceed historic <<rates>> [[natural volumes]], to minimize change to the historic [[natural]] hydroperiod of receiving waters, to maintain the quality of receiving waters, [[at or above the applicable minimum standards set forth in Chapter 17-3, Florida Administrative Code ("Water Quality Standards," Florida DER)]], and to eliminate the disruption of wetlands and flow-ways, [[the]] <<whose>> preservation [[of which]] is deemed in the public interest. The implementation action requiring local governments to require that postdevelopment runoff approximate the natural surface water flow in terms of rate, quality, hydroperiod, and basin is the only implementation action involving local governments that imposes specific performance standards. The analysis contained in the Charlotte Harbor Management Plan clearly links the health of the estuarine system to preservation of natural rates and hydroperiods of runoff. Obviously, degraded water quality or alteration of drainage basin also impacts the estuarine system. Policy 38.3.1.B, which underwent substantial revisions by the Plan Amendments, imposes a single requirement upon development in terms of runoff: postdevelopment rate must match predevelopment rate for the 25-year, 3-day storm event. It is irrelevant that this is an interim level of service standard. The stormwater level of service standard contained in Policy 38.3.1.B deviates from Objective 5 of the Charlotte Harbor Management Plan in three important respects. First, it fails to incorporate water quality, basin, and hydroperiod into the performance standards of the level of service standard. Second, it qualifies even the rate standard by a specified storm event of specified duration, even though Objective 5 of the Charlotte Harbor Management Plan is not so limited. Regardless of the storm, Objective 5 imposes the requirement that postdevelopment conditions as to these four crucial factors approximate natural conditions. Obviously, natural conditions probably involve considerable flooding during and after the 100-year, 3-day storm; but the effect of the limitation in Policy 38.3.1.B is to allow postdevelopment conditions to exceed natural conditions once the specified storm has been exceeded. Third, the stormwater level of service standard contained in Policy 38.3.1.B ignores redevelopment, including but not limited to road-widening projects. When addressing redevelopment in particular, the postdevelopment conditions must match natural conditions, not merely predevelopment conditions. Lee County argues that Policy 38.3.1.B addresses factors in addition to runoff rate. The second sentence of Policy 38.3.1.B imposes no additional requirements; it merely explains the intent of the County in imposing the rate requirement. By regulating the runoff rate, Policy 38.3.1.B may partly address water quality and hydroperiod issues; retained or detained postdevelopment stormwater may be of higher quality and may more closely approximate natural hydroperiods than unretained or undetained postdevelopment stormwater runoff. But these are indirect benefits of a performance standard addressing exclusively postdevelopment runoff rate. The County's stormwater standard may reduce change to hydroperiods and improve water quality--over undetained or unrestrained postdevelopment stormwater--but it does not impose the performance standards of unaltered hydroperiod, water quality, and basin. Nor, more importantly, will the County's stormwater standard assist in meeting the crucial objective of the Charlotte Harbor Management Plan to regulate stormwater and drainage to protect and preserve the Charlotte Harbor estuarine system, which is the primary focus of the resource management plan. Petitioner has thus proved to the exclusion of fair debate that Policy 38.3.1.B is inconsistent with Objective 5 and the Charlotte Harbor Management Plan, construed as a whole. 39/ Objective 8 of the Charlotte Harbor Management Plan provides: "The barrier islands and beaches of the Charlotte Harbor area should be managed as a whole, recognizing that any developmental activity potentially affects the processes of the entire barrier beach, barrier island, and pass systems." The second implementation action under Objective 8 is for the Florida Department of Natural Resources, Florida Department of Environmental Regulation, and U.S. Army Corps of Engineers to discourage the dredging of new channels and addition of more passes to the existing pass maintenance program. This implementation action does not apply to local governments. Petitioner has therefore failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with Objective 8 of the Charlotte Harbor Management Plan. Objective 10 of the Charlotte Harbor Management Plan provides: Future land development decisions by local government should be in accord with the goals and objectives of the Charlotte Harbor Committee, and existing platted areas should also be encouraged to develop in accord with these goals and objectives. The third implementation action under Objective 10 requires local governments and the Florida Department of Transportation to ensure that: "Highway corridor planning for undeveloped areas . . . consider[s] suitability of adjacent land for urbanization and directing [sic] construction away from environmentally sensitive areas." Petitioner argues in her proposed recommended order that Polices 27.2.1 and 27.2.2 of the Amended Plan are insufficient in terms of implementing the cited portion of the Charlotte Harbor Management Plan. However, these provisions were in the Plan and were unchanged by the Plan Amendments. For the reasons set forth in connection with Petitioner's challenge based on Objective 4 of the Charlotte Harbor Management Plan, nothing in the Plan Amendments addresses this aspect of transportation. Objective 11 of the Charlotte Harbor Management Plan provides: "Mitigation and prevention of development impacts should be initiated during site planning and site alteration processes." The second implementation action requires local governments to: require site development plans, provide for the maintenance of habitats for wildlife species, as listed by the Federal and State Endangered Species Acts, tree protection [sic], and prevent the introduction or spread of noxious vegetation. Petitioner argues in her proposed recommended order that Policy 77.4.1 of the Amended Plan, which was substantially amended by the Plan Amendments, fails to coordinate with the implementation action under Objective Petitioner asserts that Policy 77.4.1 is deficient because it refers only to the habitats of protected species listed by the Florida Game and Fresh Water Fish Commission and not those listed by the U.S. Fish and Wildlife Service. There is no evidence of any material divergence between the state and federal lists of protected wildlife species. Specific objectives in the Amended Plan address loggerhead sea turtles, southern bald eagles, West Indian manatees, gopher tortoises, red-cockaded woodpeckers, wood storks, Florida panthers, and black bears. Without a showing of some discrepancy between the state and federal wildlife lists, especially in the face of numerous provisions in the Amended Plan explicitly addressing specific wildlife species, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Objective 11 of the Charlotte Harbor Management Plan. Consistency with Regional Plan (Issue 15) The Southwest Florida Regional Plan (Regional Plan), which covers Lee County, discusses at length the problem of platted lands. Map 3 depicts vast areas of platted lands in the Lehigh Acres area of unincorporated Lee County and Cape Coral. In relevant part, the discussion states: Southwest Florida has approximately 1.1 million existing platted lots . . .. Most of these platted and subdivided lots, although undeveloped, have been sold to individual owners who have expectations of building. Regretfully, these platted areas often have not reflected the most efficient use of land. Also, due to their location, the provision of infrastructure access and service will be prohibitively costly. Further, aging of most of these subdivisions has resulted in deterioration and dilapidation of existing roads and drainage systems. Finally, many needed urban uses are not adequately provided for within these extensive plats. * * * . . . effective concentration of development activities and providing incentives for contiguous development are alternative methods of planning which continue to be discussed and debated within the Region. Although these techniques would have a positive effect on land use patterns, they conflict with development desires of lot owners who purchased property previously reviewed and approved by the local government. Efforts have been made to ensure that development is compatible with available and planned infrastructure services. Still, the problems of previously subdivided, yet still undeveloped, land remain; such problems are particularly severe for planning activities that must meet the 1985 Growth Management Act requirements, since these developments generally do not meet current regulations. As growth continues, Southwest Florida will be under greater pressure to provide services to new homes, businesses, and service centers. These platted areas will be popular, affordable home sites. Providing services to these lots, however, will become an increasing burden. Additionally, the Region will have to consider providing alternative land use choices to current lot owners where development would not be desireable or cannot have services provided at the ultimate buildout densities. Joint Exhibit 11.b, pages 16-8 to 16-9. Regional Plan Goal 16 states: By 2010, the number of vacant platted lots in areas without adequate infrastructure or in areas not designated for urban development in Southwest Florida will be reduced by 30%. Goal 16 is an integral part of the Regional Plan. Effective land use planning may be impossible without addressing the problems presented by thousands of acres of vacant, prematurely platted lands. There is evidence that Lee County is addressing the problem. It has utilized vacant, preplatted lots to some extent in an affordable housing program. Lehigh Corporation, which is evidently a major developer in the Lehigh Acres area, has bought back some lots and/or exchanged better lots for more outlying and less developable lots. However, at the same time, Lehigh Corporation is subdividing more property in the Lehigh Acres area. It is unclear whether Lee County will find itself with more or less vacant, preplatted lots by 2010. More likely, it will be less for a variety of reasons, but how much less is left entirely to conjecture based on the present record. Petitioner's argument in her proposed recommended order is based on the acreage remaining vacant in 2010 in planning subdistricts 601- 11, 704, and 706, which constitute much if not all of Lehigh Acres. However, the record does not establish how much of this acreage is already platted or how much of the vacant acreage remaining in 2010 will by then have been platted. For these reasons, as to Issue 15, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the Regional Plan. Consistency with State Plan (Issue 16) Petitioner argues in her proposed recommended order that the Amended Plan is inconsistent with Section 187.201(8)(b)2 and 12, (10)(b)10, (16)(b)2, and (18)(b)3. Section 187.201(8)(b)2 is to: "Identify and protect the functions of water recharge areas and provide incentives for their conservation. Petitioner argues in her proposed recommended order that the Amended Plan does not protect the functions of water recharge areas. She asserts that Policies 85.1.2 and 87.1.1, which generally require the protection of surface and groundwater quality and natural recharge systems, are vague and ineffective. The Plan Amendments did not modify Policies 85.1.2 or 87.1.1. The Plan Amendments added the Density Reduction/Groundwater Resource designation to thousands of acres of land, together with Policy 1.4.3, which states: <<The Density Reduction/Groundwater Resource areas include upland areas that provide substantial recharge to aquifers most suitable for future well field development. These areas also are the most favorable locations for physical withdrawal of water from those aquifers. Only minimal public facilities exist or are programmed. Land uses in these areas must be compatible with maintaining surface and groundwater levels at their historic levels. Permitted land uses include agriculture, mineral and limerock extraction, conservation uses, and residential uses at a maximum density of one dwelling unit per ten acres (1 du/10 acres). Individual residential parcels may contain up to two acres of resource protection areas and transition zones without losing the right to have a dwelling unit, provided that no alterations are made to those wetland areas.>> The Plan Amendments also added Policy 39.1.4, which provides: <<The county's Surface Water Management Master Plan shall place particular emphasis on 1) routing surface water runoff from areas of excess to areas where additional subsurface storage is available; and 2) maintaining and increasing historic surface and groundwater levels in the Density Reduction/Groundwater Resource land use category.>> The Plan Amendments revised Policy 41.2.2, which states: <<A new land use category, called the Density Reduction/Groundwater Resource category, shall be applied to protect the County's groundwater resources and principal recharge areas. Land use controls in the category shall be as described in Policy 1.4.3.>> Policies 15.2.2 and 32.1.9, which were added by the Plan Amendments, impose special land use restrictions in the Bonita Springs and Lehigh Acres areas, based on potable groundwater considerations. Policy 2.4.2, which was also added by the Plan Amendments, concludes by offering additional protection to these areas and all areas designated Density Reduction/Groundwater Resource: <<All proposed changes to the Future Land Use Map in critical areas for future potable water supply (Bonita Springs as described in Policy 15.2.2; Lehigh Acres as described in Policy 32.1.9; and all land in the Density Reduction/Groundwater Resource land use category) shall be subject to a special review by the staff of Lee County and the South Florida Water Management District (SFWMD). This review will analyze the proposed land uses to determine the short- term and long-term availability of irrigation and domestic water sources, and will assess whether the proposed land uses would cause any significant impact on present or future water resources. If the Board of County Commissioners wishes to approve any such changes to the Future Land Use Map, it must make a formal finding that no significant impacts on present or future water resources will result from the change. (SFWMD's recommendations or findings under this policy shall not be construed to restrict or otherwise encumber their authority to issue or deny water-use permits as may be required by law.)>> The Revised Data and Analysis survey recent hydrologic investigations for all relevant aquifers. The investigations amply support the Density Reduction/Groundwater Resource designations. The Data and Analysis provide no basis for questioning the consistency of the provisions of the Amended Plan in protecting the functions of water recharge areas with similar provisions in the State Plan. Largely due to the adoption of the Plan Amendments, especially the new Density Reduction/Groundwater Resource designation, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Section 187.201(8)(b)2. Section 187.201(8)(b)12 is to: "Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." This is an integral part of the State Plan and is linked to the protection of surface waters including estuaries, drainage and floodplains, and various other natural resources. For reasons already discussed in connection with Objective 5 of the Charlotte Harbor Management Plan, Petitioner has proved to the exclusion of fair debate that Policy 38.3.1.B, which sets an interim stormwater level of service standard, is inconsistent with Section 187.201(8)(b)2 with respect to the omission of hydroperiod, basin, and quality performance standards; the addition of a qualifying storm event; and the exclusion of redevelopment. 40/ A level of service standard is a vital provision in a comprehensive plan because the standard is typically clear and easily enforceable. The stormwater management provisions in the State Plan play a crucial role in attaining consistency with numerous provisions of the State Plan. For these reasons, Policy 38.3.1.B represents an inconsistency with the State Plan construed as a whole. The inconsistency between Policy 38.3.1.B and the State Plan is limited to the failure of Policy 38.3.1.B: 1) to set a stormwater level of service standard throughout Lee County requiring postdevelopment conditions to be equal to or better than natural conditions in terms of water quality, hydroperiod, and basin, as well as rate; 2) to impose the stormwater level of service standard throughout Lee County regardless of the storm event; and 3) to impose the stormwater level of service standard on all development and redevelopment in Lee County. 41/ Petitioner argues in her proposed recommended order that the inconsistency with the State Plan extends to the failure of the Amended Plan to fund fully the stormwater management plan. Petitioner has failed to prove to the exclusion of fair debate that consistency with Section 187.201(8)(b)12 and the State Plan requires the above-described funding. Section 187.201(10)(b)10 is to: "Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation." Petitioner argues that the Amended Plan is not consistent with the State Plan due to the failure of the future land use map series to designate rare and unique habitats for densities and intensities that are suitable for the vegetative and habitat values of certain areas, especially the North Bonita Springs area. As noted above in connection with the discussion of the 2010 overlay, the Plan Amendments do not directly reintroduce the issue of land use suitability. A timing device, the 2010 overlay is quantitatively oriented. With the exception of the Density Reduction/Groundwater Resource designation, which tends to enhance suitability, nothing in the Plan Amendments directly raises the suitability issue. Provisions contained in the Plan Amendments enhancing the coordination of future land use designations with valuable vegetative communities and, particularly, wildlife habitat are Objectives 77.10 and 77.11 and their policy clusters. These provisions have already been discussed. 42/ Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Section 187.201(10)(b)10. Section 187.201(18)(b)3 is to: "Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents." Petitioner objects in her proposed recommended order to the sufficiency of Objective 70.3, which requires that "new development pays at least 80% of the capital costs of public infrastructure directly attributable to that new development." Petitioner argues that Policy 2.3.2 is also insufficient because it merely requires that the "cost for the provision and expansion of services and facilities that benefit new development shall be borne primarily by those who benefit." Objective 70.3 and Policy 2.3.2 were unchanged by the Plan Amendments. Section 187.201(16)(b)2 is to: "Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats." The Amended Plan is no model of urban containment. Choosing a less regulatory approach to land use planning, although involving considerably more intervention than has traditionally prevailed, Lee County has repeatedly and unconvincingly argued in the Revised Data and Analysis that various conventional planning strategies are unsuitable for Lee County. Some planning alternatives proffered by Lee County have failed to achieve consistency with the growth management law. Some planning alternatives have achieved consistency, and some planning alternatives have been spared review by the focus of the present recommended order on the Plan Amendments and Revised Data and Analysis and the focus of the recommended order in DOAH Case No. 89-1843GM on the settlement agreement. It would be a daunting task to try to determine the effect of the Amended Plan upon urban sprawl. Without the density allocation ratio, it is an impossible task. If the ratio were relatively high, provisions of the Amended Plan would have to bear a greater burden in ensuring efficiency in the use of land and provision of public facilities and the protection of natural resources and agriculture. Without a density allocation ratio, relevant provisions of the Amended Plan cannot be adequately evaluated in terms of their relationship to urban sprawl. It suffices for the purpose of determining consistency with the State Plan that the Plan Amendments assigned the Density Reduction/Groundwater Resource designation to thousands of acres of land in Lee County and, by so doing, achieved a significant separation between urban and rural uses. For this reason, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the State Plan in terms of separating urban and rural uses.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that, pursuant to Section 163.3184(9)(b), Florida Statutes, the Department of Community Affairs submit the recommended order to the Administration Commission for entry of a final order determining that the Plan Amendments are not in compliance for the reasons set forth above. ENTERED on January 27, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 27, 1993. NOTE: In the ACCESS document, language added to the policy is within the <<>>; deleted language is within the [[]].
The Issue The issue is whether Polk County's small scale development amendment (CPA2003S-02) adopted by Ordinance No. 03-03 on January 22, 2003, as later amended by Ordinance No. 03-19 on March 15, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Berry is the owner of a tract of land located on the southwest corner of the intersection of Eagle Lake Loop Road (County Road 540-A) and Pollard Road in Section 16, Township 29, Range 26 in the eastern part of unincorporated Polk County, Florida. The property lies south of the City of Winter Haven, east-southeast of the City of Eagle Lake, less than a mile south of Lake Eloise (on which Cypress Gardens is located), and west of U.S. Highway 27. Because Berry owns property within the County, and submitted oral and written comments to the County prior to the adoption of the challenged amendment, it has standing to participate in this action. On July 19, 2002, Berry filed an application with the County Planning Department seeking to change the land use on 9.99 acres (or just below the threshold of 10.0 acres for a small scale amendment) from RL-1 to Neighborhood Activity Center (NAC) to include approximately 4.95 acres of various neighborhood specialty shops such as a grocery store, drug store, convenience store, and dry cleaners, with the remaining acreage used as a mini-warehouse self-storage facility. In September 2002, Berry amended its application by seeking to change 3.93 acres from RL-1 to CC and 6.06 acres from RL-1 to BPC-1. The application was assigned Case File No. CPA2003S- 02. Under the County's review process, the application is first reviewed by the County Development Review Committee (Committee), then by the County Planning Commission (CPC), which either accepts or rejects the Committee's recommendation, and finally by the Board of County Commissioners (Board), which either adopts the amendment, adopts the amendment as amended by the Board, or rejects the amendment. After conducting a preliminary review of the application, on September 16, 2002, the Committee conducted a public hearing and voted to recommend approval. The matter was then transmitted to the CPC, which conducted a meeting on October 9, 2002, and recommended that the Board approve the amendment. On January 22, 2003, by a 3-2 vote, the Board adopted CPA2003S-02 changing the designation on the FLUM of the County Comprehensive Plan (Plan) as proposed by Berry. This was confirmed by the County's adoption of Ordinance No. 03-03. On February 21, 2003, Petitioners filed their Petition challenging the Berry amendment. The matter was again placed on the Board's agenda on March 19, 2003, after the County discovered that Ordinance No. 03-03 had inadvertently changed the land use on the entire parcel to CC rather a mix of CC and BPC-1. In addition, there were minor errors in the legal description of both the 3.93 and 6.06-acre parcels. Accordingly, Ordinance No. 03-19 was enacted to correct those errors. A second Petition for Formal Administrative Proceedings (with essentially the same allegations, but also adding an allegation that the same property had been improperly subject to two small scale amendments within a 12- month period) was filed by Petitioners on March 19, 2003, challenging the action taken in Ordinance No. 03-19. At the outset of the final hearing, Petitioners voluntarily dismissed two allegations contained in their Petition. In their Proposed Recommended Order, Petitioners have further narrowed the issues by addressing only the following allegations: that the property which is the subject of this proceeding exceeds 10.0 acres in size and therefore cannot qualify as a small scale amendment; and that the amendment violates Future Land Use Element (FLUE) Policies 2.102-A1, 2.113-B-3, 2.113-B-4, 2.110-C3, and 2.113-B-1 and is thus internally inconsistent with the Plan. These issues will be discussed separately below. All other allegations contained in the second Petition and the parties' Pre-Hearing Stipulation are deemed to have been withdrawn or abandoned. Because the change in the FLUM was filed and approved as a small scale plan amendment under Section 163.3187(1)(c), Florida Statutes (2003),1 a compliance review of the amendment was not made by the Department of Community Affairs (DCA). See § 163.3187(3)(a), Fla. Stat. Standing of Petitioners Durham is a realtor/developer who owns property within 250 feet of Berry's property and resides at 10 Lake Eloise Lane, Southeast, Winter Haven, Florida. He made oral and written comments to the County prior to the adoption of the amendment. As such, he qualifies as an affected person under Section 163.3184(1)(a), Florida Statutes, and has standing to bring this action. CPPI began as an association in November 2002 and was later incorporated in February 2003. Presently, it has around 100 members, all of whom reside in the County. According to its chairperson, its purpose is to "help educate and inform residents of Polk County . . . towards growth matters that may affect their daily lives." The organization "encourages donations" from its members; it was scheduled to have conducted its first annual meeting on January 10, 2004; and members prepared and circulated petitions opposing the amendment to residents of the area in December 2002 and January 2003. At least one member of CPPI made written and oral comments on its behalf to the County prior to the adoption of the amendment in March 2003. There is no evidence, however, that CPPI (as opposed to its individual members) owns property or owns or operates a business within the County. Therefore, it lacks standing to file a petition. The land and surrounding uses Berry owns a triangle-shaped parcel of land (the parent parcel) totaling around 14 acres which fronts on Eagle Lake Loop Road (a 24-foot wide urban collector road) to the north, Pollard Road (a local road) to the east, and a CSX railroad track, with right-of-way, on its western side. (Pollard Road dead ends at Eagle Lake Loop Road, and another collector road, Eloise Loop Road, continues to the north from the intersection). Pollard Road provides access to eight nearby single-family homes, which lie south of the Berry property and front on Pollard Road, and eventually terminates at the City of Winter Haven's Sewage Treatment Plant (an institutional use), which lies slightly more than a mile south of the site. To the west of the site directly across the railroad tracks and fronting on Eagle Lake Loop Road is additional property owned by Berry and on which were once located the original Berry corporate offices. The Berry office buildings are now used, at least partially, by other tenants. Although the land across the railroad tracks is classified as Residential Suburban (RS), the property can be used for offices since the buildings were constructed, and office use began, prior to the adoption of the Plan. Directly across Pollard Road to the east is a vacant 10-acre tract of land owned by the Baptist Ridge Association, which intends to construct a church on the property. Berry's property is now classified as RL-1, a land use classification which "is characterized by single-family dwelling units, duplex units, and small-scale multi-family units." Since at least the 1950s, however, or long before the County adopted its Plan, the property has been used primarily for agriculture purposes (citrus groves); therefore, Berry is grandfathered to continue this non-conforming use on its property. Presently, the entire tract of land is undeveloped and largely covered by an orange grove, which Berry describes as "past maturation and is declining." Citrus trucks and trailers have been parked on the extreme northwestern corner of the parent parcel and are used in conjunction with the citrus operation. Except for the former Berry offices, a nearby beauty salon operating out of a house, and a convenience store about three-quarters of a mile away, which all began operation before the Plan was adopted and are grandfathered as non- conforming uses, and the City of Winter Haven's large tract of institutional land to the south, all of the property within slightly less than a one-mile radius of the Berry property is classified in various residential land use categories with only residential uses. The Amendment As noted above, Berry has owned the subject property for many years. In 1987, Berry (then under the name of Jack M. Berry, Sr.) made application with the County for a zoning change on the property from Rural Conservation (RC) to Commercial (C-3) to allow typical commercial uses. The application was ultimately denied by the County on the ground, among others, that the zoning district being proposed was inconsistent with the Plan, "given the residential development pattern in the area." At least partly on the theory that the area has changed substantially in the last 15 years, Berry has filed (and the County has approved) an application seeking to change the land use on the property to commercial uses. Berry has carved out of the parent parcel two smaller parcels totaling 9.99 acres in size and seeks to change the land use on the northern parcel (3.93 acres) to CC and the land use on the southern parcel (6.06 acres) to BPC-1. The remaining land in the parent parcel, which consists of a 0.43-acre triangle-shaped parcel on the northwestern corner of the parent parcel and now used by citrus trucks, and a vacant 2.74-acre triangle-shaped parcel on the southern end, will remain R-1. (However, all parties agree that if the amendment is approved, these remaining parcels will be unsuitable for residential development.) In addition, strips of land ranging from 22 to 28 feet in width which front on Eagle Lake Loop Road and Pollard Road will be dedicated to the County for right-of-way and have not been included in the 9.99-acre amendment. Presumably, the proposed change is being done in this manner so that the total acreage is less than 10.0 acres, which qualifies the application to be processed as a small scale development amendment rather than a regular plan amendment and subject to DCA review and approval. If the change is approved, the northern part of the parcel (3.93 acres) will be changed to CC to develop convenience commercial uses. Under the Plan, the most typical tenant in this category is a convenience store, while other typical tenants include laundry, dry cleaning, barber, restaurant, gas station, and office uses. The southern (and larger) portion of the tract will be changed to BPC-1. The most typical tenant in this category is "[o]ne or more light- assembly plants, or warehouse facilities," which include a mini-warehouse storage facility. Other typical tenants described in the Plan are offices, distribution centers, research and development firms, and high-density residential, with proper buffering. (Berry says it intends to build a mini-warehouse facility on the southern parcel; however, any of the above described uses could be placed on the property if the change is approved.) Petitioners' Objections In broad terms, Petitioners have contended that the small scale amendment actually involves a use of more than 10 acres since the strips of land being dedicated as right-of-way to the County must be counted as a part of the land being amended. They also contend that the plan amendment violates five FLUE policies and is therefore internally inconsistent with the Plan. A small scale development amendment can only be adopted if "[t]he proposed amendment involves a use of 10 acres or fewer." See § 163.3187(1)(c)1., Fla. Stat. The parties have agreed that the legal description of the parcel subject to the change includes only 9.99 acres, or less than the 10-acre threshold. However, prior to the development of the site, Berry intends to dedicate to the County two strips of land, one fronting on Eagle Lake Loop Road (28 feet wide), and the other on Pollard Road (22 feet wide), for future right-of-way for some public purpose. Petitioners contend that the right-of-way constitutes essential infrastructure for the development and must be included as a part of the amendment. If this land is added to the amendment, the total acreage would obviously exceed 10.0 acres. The dedicated land is not "essential infrastructure" needed for the development activities on the land, since two roadways (Eagle Lake Loop Road and Pollard Road) already exist on the northern and eastern boundaries of the property, and they are sufficient in size to provide ingress to, and egress from, the property. Instead, the County will "bank" the land in the event some form of right-of-way activity is needed in the future. It is noted that Eagle Lake Loop Road was recently widened to 24 feet, and it is not anticipated that a further widening will occur for a number of years. There is nothing in the Plan which requires an applicant for an amendment to include all of its property in a proposed amendment, or prevents an applicant from leaving a residual piece of property out of the application. Therefore, Berry was not required to include in the amendment the right- of-way or the two smaller residual pieces of property that will remain R-1. Finally, assuming arguendo that Petitioners' contention is correct, that is, that an applicant must include right-of-way land dedicated to the local government in the total acreage calculation, Berry could still lawfully comply with the 10-acre threshold by simply reducing the other acreage being changed to CC or BPC by the amount of land being dedicated to the local government for right-of-way. Therefore, it is found that Berry has not improperly excluded from the amendment land necessary for essential infrastructure so as to violate Section 163.3187(1)(c)1., Florida Statutes, as alleged by Petitioners. Policy 2.102-A1 requires compatibility between adjacent uses. More specifically, it provides that: Land shall be developed so that adjacent uses are compatible with each other, pursuant to the requirements of other Policies in this Future Land Use Element, so that one or more of the following provisions are accomplished: there have been provisions made which buffer incompatible uses from dissimilar uses; incompatible uses are made to be more compatible to each other through limiting the intensity and scale of the more intense use; uses are transitioned through a gradual scaling of different land use activities through the use of innovative development techniques such as a Planned Unit Development. Therefore, as the Plan is now written, so long as Berry develops the land in a manner which accomplishes at least one of the three "provisions" in paragraphs a - c of the policy, so as to make the adjacent uses compatible, the proposed land use change is permissible. As noted above, except for a few non-conforming uses adjacent to, or near the property, virtually all of the area around the Berry property is designated for residential use. The area to the north and northeast is developed with up-scale (with some homes ranging to as high as $1 million in value), low density, large lot, single-family residential subdivisions, including Harbour Estates, Cedar Cove, Cypress Cove, Gaines Cove, and Valhalla. To the east of the site are more subdivisions, including Eloise Place, Skidmore, Cypress Point, Lake Eloise Estates, Eloise Pointe Estates, a mobile home park, and Little Lake Estates. The lands to the south are primarily agriculture and in active citrus groves, with eight single-family homes on Pollard Road. Finally, a church will be built on the property directly across the street from the Berry property at the southeast corner of the intersection of Eagle Lake Loop Road and Pollard Road. The County Planning Director agrees that a convenience store (which is an authorized use on CC land), standing alone, is incompatible with adjacent single-family residences. Given this acknowledgement, and the fact that a non-binding, proposed site plan submitted by Berry with its application does not provide for any buffering between the commercial uses and the residential areas, Petitioners contend that none of the conditions required for compatibility in paragraphs a through c have been met, and thus the policy has been violated. The County has made clear, however, that when a final site plan is submitted, there must be "provisions [in the site plan] . . . which buffer incompatible uses from dissimilar uses," as required by the policy. Assuming that this is done at the site plan stage, at least one of the three provisions will be accomplished, thereby satisfying the compatibility requirement. This being so, the plan amendment does not violate the policy and in this respect is not internally inconsistent with the Plan. Petitioners next contend that the amendment is inconsistent with Policy 2.110-C3, which contains locational criteria for CC property. One such criterion requires that "Convenience Centers shall be located at the intersections of arterial and/or collector roads." Because the property is at a T-shaped intersection (as opposed to a traditional cross intersection with four directions for traffic to move off the site), Petitioners assert that the property is not located at an "intersection" within the meaning of the policy. Eagle Lake Loop Road, on which the northern boundary of the property fronts, is designated as an urban collector road. That road forms an intersection with Pollard Road (a local road) and Eloise Loop Road (also an urban collector road), which meets Eagle Lake Loop Road from the north at the intersection, and then makes a 90 degree turn to the east. (When Eagle Lake Loop Road continues to the east beyond the intersection, it turns into Eloise Loop Road, and later into Thompson Nursery Road, until it eventually intersects with U.S. Highway 17.) There is no dispute that the two collector roads (Eagle Loop Lake Road and Eloise Loop Road) form a T intersection, rather than a traditional cross intersection. For many years, however, the County has considered a T intersection and a cross intersection to be the same in terms of satisfying Plan requirements. Indeed, at the present time, at least four other CC designated properties within the County are located at T intersections. The County's interpretation of the policy is consistent with sound planning principles, is reasonable and logical, and is more persuasive than the contrary view offered by Petitioners. Accordingly, it is found that the amendment does not conflict with Policy 2.110- C3. Petitioners also contend that the amendment is inconsistent with Policy 2.113-B-3, which provides that "Business-Park Centers shall be located with consideration being given to regional transportation issues, and should be located at the intersections of arterial roads, and preferably on a fixed-route mass-transit line." (Emphasis added.) The use of the word "should" (rather than "shall") is intended to state a preference, but not an absolute requirement, that BPC lands be located at the intersections of arterial roads. According to the County's Planning Director, this is because "most cases that come [before the County] don't meet the ideal situation" of satisfying every requirement, and the County has used this permissive language to give itself some degree of flexibility in handling cases that do not meet every Plan requirement. Therefore, even though it is preferable that BPC land be located at the intersection of arterial roads, this requirement is not mandatory, and the County has the flexibility to approve a BPC land use change at property not sited at the intersection of arterial roads. In contrast to the permissive language described above, Policy 2.113-B-4 provides that development within a Business-Park Center shall conform to certain development criteria, including one that Business-Park Centers shall have frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves an arterial roadway. Business-Park Centers shall incorporate the use of frontage roads or shared ingress/egress facilities wherever practical. In this case, the closest arterial roadway to Berry's property is State Road 17 to the west, which is four miles away, while State Road 60, another arterial roadway, is approximately six miles to the south. These arterial roads must be accessed, at least at the beginning of the trip, by Eagle Lake Loop Road, a two-lane, 24-foot wide urban collector that runs through predominately residential neighborhoods with some homes having fences within a foot or two from the road. The County interprets the requirement that BPC land have "direct access to an arterial road" to be satisfied if the property fronts on a collector road, which then provides access to an arterial road. Under the County's interpretation, the requirement is met since Eagle Lake Loop Road provides access (albeit 4 to 6 miles away) to State Roads 17 and 60. The County says it has consistently interpreted this provision in this manner for at least ten years, and has approved other applications for changes to BPC when those parcels were located on urban collector roads. (The distance between these other BPC parcels and the arterial roads is not of record, however.) While Policy 2.113-B-1 provides that Business-Park Centers are "not intended to accommodate major commercial or other high-traffic producing facilities," they "are intended to promote employment opportunities within the region by allowing for the establishment of office parks, research and development parks, areas for light-industrial facilities, distribution centers, and mixed-use employment parks." The same policy provides that they must have a usable area of 10 acres or more, have a service-area radius of 20 miles or more, be supported by a population of 150,000 or more people, and have a gross leasable area of 500,000 to 2,000,000 square feet. Given this description of their purpose and characteristics, and the wide range of commercial activities that are allowed on Business-Park Center lands, it is not surprising that Policy 2.113-B-3 provides that BPC lands should be located "at the intersections of arterial roads, and preferably on a fixed-route mass-transit line," while Policy 2.113-B-4 requires that they "have direct frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves on an arterial roadway." When reading these provisions as a whole, it is unreasonable to conclude, as the County does, that "direct access" contemplates a drive of over 4 miles, partly on a narrow two- lane road, in order to reach an arterial road. Accordingly, on this issue, Petitioners' evidence is the most persuasive, and it is found that the plan amendment conflicts with Policy 2.113-B-4 and in this respect is internally inconsistent with the Plan. Policy 2.110-C3 sets forth the following location criteria for Convenience Centers: LOCATION CRITERIA Convenience Centers shall be located at the intersections of arterial and/or collector roads. There shall be the following traveling distance, on public roads, between the center of Convenience Center and the center of any other Convenience Center, or other higher- level Activity Center, Linear Commercial Corridor, or Commercial Enclave providing for the same convenience shopping needs: One (1) mile within the UDA and UGA Two (2) miles within the SDA and UEA This required separation may be reduced if: The higher-level Activity Center, Linear Commercial Corridor or Commercial Enclave within the required distance separation is over 80 percent developed; or the proposed Convenience Center market- area radius, minimum population support is over 5,000 people. Petitioners contend that this policy has been violated in two respects: the Berry property is not located at the intersection of arterial roads; and there is an existing convenience center located within 0.8 mile of the Barry property, and Berry cannot qualify for a reduction in the required separation, as described in paragraphs a and b. For the reasons stated in Findings of Fact 30-32, it is found that the Berry property is located at the intersection of two collector roads (Eagle Lake Loop Road and Eloise Loop Road) and that a T intersection satisfies the requirements of the policy. As to the second contention, the Berry property is located within an UGA (Urban Growth Area), and an existing convenience store is located at the intersection of Rifle Range Road and Eagle Lake Loop Road, or less than a mile west of Berry's property. The land use on the property on which the store sits was recently changed (in December 2003) to BPC, which does not allow a convenience store. However, the store is a non-conforming use, having been located at that site before the Plan was adopted. The locational requirement in Policy 2.110-C-3 that CC lands within the UGA be located at least a mile apart is not the least bit vague or ambiguous: CC designated lands (and not individual convenience stores, as Petitioners suggest) must be separated by at least a mile, unless one of the two criteria for reducing this separation is met. Because there is no CC land within a one-mile radius of the Berry land, the policy has not been violated. Policy 2.113-B-1 sets forth the following relevant characteristic for Business-Park Centers: General characteristics of Business-Park Centers are: Usable Area 10 acres or more There is no dispute that the useable area for the BPC land is only 6.06 acres, or approximately 60 percent of the required acreage. Petitioners contend that the amendment violates the foregoing policy because the useable area on Barry's property is much less than "10 acres or more." While the former County Planning Director conceded that the 10-acre usable area requirement is "mandatory," he justified the amendment on the ground that the 6.06 acres "approximates" 10 acres, and thus satisfies the policy. In the same vein, the current County Planning Director asserted that if Berry was proposing a stand-alone BPC, it would have been required to have 10 usable acres. In this case, though, he pointed out that the Berry property will be used for a nonresidential mixed use (BPC and CC) totaling almost 10 acres, and therefore Berry has satisfied the requirement. The Planning Director admitted, however, that nothing in the Plan specifically allows this type of exception. He justified the County's action on the theory that the Plan "doesn't anticipate every situation that comes in," and "interpretations have to be made of the comprehensive plan and how it's applied." The requirement that Business-Park Centers have a usable area of 10 or more acres is clear and unambiguous, was characterized as being "mandatory," and is not subject to any exceptions in the Plan. This being so, the County's interpretation is found to be unreasonable and contrary to the plain language in the policy, and in this respect the plan amendment is internally inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment (CPA2003S-02) adopted by Polk County by Ordinance No. 03-03, as amended by Ordinance No. 03-19, is not in compliance. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2004.
