Findings Of Fact On January 13, 1983, Respondents Donia and Bobowski filed with Monroe County petitions for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The property on which the roads are proposed to be constructed consists of two lots, each 1.09 acres in size. The lots are contiguous to each other and are located on Sugarloaf Key, Monroe County, Florida. Respondents Bobowski and Donia represented in their petitions for special use approval that they owned or were in the process of purchasing the subject property. Respondent Bobowski submitted with his application a contract for sale to him of both 1.09-acre lots which specified the sale was to be closed by March 25, 1982. Ms. Donia included with her petition a letter stating that Mr. Bobowski was in the process of deeding a portion of his land to her. On January 26, 1983, Respondent Bobowski filed a Complaint for Specific Performance against James Knox Julian, Jr., owner of record of the property for which Bobowski and Donia submitted applications for special use approval. As of September 10, 1984, Julian had filed a motion to dismiss that Complaint on grounds that there had been no pleadings filed or action taken by Bobowski for a period of more than one year. There is no evidence that James Julian authorized Respondents Donia or Bobowski to submit the applications for special use approval on his behalf. Respondents Donia and Bobowski have been sent copies of pleadings in this case. The Monroe County records containing Donia's application for special use approval indicate that Catherine Donia is now Catherine Bobowski. Ms. Bobowski participated in a telephonic conference call between the parties and the undersigned in which she was specifically advised of the scheduled final hearing in this case and of the necessity for her and Thomas Bobowski to appear to present their evidence in support of their applications. Neither she nor Mr. Bobowski, nor any representative of theirs, appeared at the final hearing. On January 20, 1983, Respondents McDonald and Allen filed an application for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The McDonald/Allen property is a 2.9 acre parcel on Sugarloaf Key in Monroe County Florida. The proposed driveway runs from State Road 939A through a tidally inundated black mangrove community to a dune ridge and tropical hardwood hammock fronting the Atlantic Ocean. The driveway project described in the original application involved the deposit of 433 cubic yards of limerock fill to construct an access driveway 325 feet long, 12 feet wide, and 4 feet deep. Six culverts twelve inches in diameter were to be placed at 50-foot intervals along the access driveway. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to replace the twelve-inch diameter culverts with four box culverts three feet by eight feet. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The McDonald/Allen property is located on the southern shoreline of Sugarloaf Key in an area referred to as Sugarloaf Beach. The foreshore or foredune fronting the Atlantic Ocean consists of a beach and berm rising to a dune crest approximately 30 feet from the ocean. The sandy beach is approximately 6 to 15 feet in width. The dune top extends landward from the dune crest for approximately 100 to 125 feet before descending to the back dune and the wet land and transitional areas. The transitional area continues landward approximately 60 feet before descending into the wetlands. The wetlands run landward approximately 300 feet to the property boundary on State Road 939A. The foreshore or foredune of the McDonald/Allen property is covered by sea oats, sea purslane and cord grass assemblage. The entire dune top from the dune crest to the back dune is covered by a mature, climax tropical hardwood association. Species present include: torchwood, white stopper, inkwood, blolly, gumbo-limbo, blackbead, Spanish stopper, Jamaican dogwood, seven-year apple, sapodilla, coconut palm, short-leaf fig, gray nicker, wild lantana, buttonwood, snowberry, prickly pear cactus, bay cedar, and spider lily. The vegetation displays a stratified structure with a high canopy composed of very large, tall trees an indication of a very mature system. The transitional wetland community found on the back dune consists of saltwort, sea daisy, railroad vine, and seagrape. The wetlands-are characterized as submergent wetlands containing black mangroves. The black mangrove community is inundated year round with water depths measured between 6 and 12 inches over the majority of the property. The black mangroves reach heights of 15 feet, with large trees located over the southern extent of the wetlands (adjacent to the upland ridge). Attaining heights of 25 to 30 feet, these larger mangroves form a hammock with an open understory in a dense canopy. The mangrove area is a productive, healthy system. The wetlands of the McDonald/Allen property are a part of a larger area of healthy wetlands approximately 10 acres in extent, bounded by State Road 939A on the north, the dune ridge to the south, an unculverted fill road to the west, and a culverted fill road to the east. Wildlife present on the property include marsh rabbits, raccoons, black crown night herons, little blue herons, Louisiana herons, white crown pigeons, blue crabs, fiddler crabs, mosquito fish, killy-fish, sailfin mollies, and sheepshead minnows. On February 1, 1983, Respondent Stage filed an application for special use approval to deposit fill and construct an access driveway in the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The Stage property is a 0.64-acre lot on Big Pine Key in Monroe County, Florida. The proposed driveway runs from Long Beach Boulevard through a wet land area to a dune ridge and hammock fronting the Atlantic Ocean. The driveway project described in the original application called for the deposit of limerock fill to construct an access driveway 100 feet long, 12 feet wide, and 2-3 feet deep along the east side of the lot. Two culverts 12 inches in diameter were to be placed 50 feet apart. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to locate the access driveway through the center of the lot and to replace the 12-inch diameter culverts with two 36-inch diameter culverts to be placed at the base of the access drive. The proposed access road is to lead to a proposed turnaround and a proposed single-family residence on the back dune or dune ridge of the Stage property. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The Stage property is located on the southern shore of Long Beach on Big Pine Key. The natural systems of the Stage property are similar in many respects to those of the McDonald/Allen property. The foreshore or foredune fronting the Atlantic Ocean has a shoreline consisting of a dense mangrove fringe. The foredune rises to a dune crest approximately 28 feet landward from the shoreline. The dune top extends landward from the dune crest approximately 100 feet before descending to the back dune and wetland area. The back dune runs landward 40 feet before descending into the wetlands. The wetlands run landward approximately 10 feet to a filled area approximately 75 feet deep fronting Long Beach Boulevard. Landward of the mangrove fringe on the foredune is a dense growth of night shade, behind which the hardwood hammock vegetation begins, at approximately 10 feet from the shoreline. The understory of the hammock has a very rich growth of wild bamboo. Trees in the hammock community include blolly, spider lily, Jamaican dogwood, Keys bamboo, gumbo-limbo, darling plum, seven-year apple, wild dilly and coconut palm. The area along the lower back dune displays transitional vegetation consisting of blackbead, limber caper, sea grape, bay cedar, sea daisy, and remnant black and white mangroves. At lower elevations of the property below the back dune and abutting the roadside fill area are found buttonwood, black mangrove without pneumatophores, saltwort, red mangrove, black mangrove, white mangrove, and sea purslane. The wetland and red mangrove area is about 10 to 15 feet in size, healthy, and of high productivity. The transitional vegetation is productive in that it has a very high value to the organisms that are feeding upon it in that particular area, although its productive value is lower than that of the red mangrove system. Wildlife found on the property include marsh rabbit, raccoon, Key deer, and hermit crabs. Other species expected to be found are the eastern indigo snake the red black snake, and the silver rice rat, all species listed by the federal government as threatened. Both the McDonald/Allen and Stage properties are located in the Florida Keys in Monroe County, which has been designated an area of critical state concern. The Florida Keys is the only tropical area in the entire continental United States. The uncontroverted testimony of witnesses for the Respondents and Petitioner was that virtually every natural feature found there is unique. The Long Beach and Sugarloaf Beach coastal dune structures are particularly significant natural systems because of the scarcity of these sandy beaches and dune systems in the Florida Keys. Such systems have been estimated to represent only 2 percent of the land mass of the Florida Keys. They are even more scarce when considered in reference to the land mass of the United States because there are no comparable natural systems in North America. The dune systems on Sugarloaf Beach and Long Beach are storm berms or storm beaches, which are created when near source material is driven by storm effect onto the beach and ridge. These beaches are stable when highly vegetated and undisturbed. The plant communities found on the dune system have adapted to resist the impact of storms, both wind and wave. Seagrape trees, for example, diminish the shearing effect of the wind by absorbing wind energy. Many of the plant species are deeply rooted and essentially adapted to the intermittent effects of storms. When the natural systems and vegetative communities are altered, the dune system loses its resistance to storm and is subject to instability and erosion. Many of the plant and animal species present in the Florida Keys and on the McDonald/Allen and Stage properties are only found in the Keys. They are endemic species which have deviated from the mother populations on the mainland, and they are of particular interest to the scientific community. The McDonald/Allen property, in particular, is unique because it combines a very mature hardwood system with the coastal dune structure. Maturity of the hardwood hammocks is evidenced by the large dimensions of the trees, especially the gumbo-limbos and inkwood, and the height and structure of the tree canopy. The mangrove wetland areas on the McDonald/Allen and Stage properties could also be called unique by virtue of their location in the Florida Keys, though they are similar to other mangrove wetland areas. They are both productive, healthy systems. Such mangrove systems are considered to be one of the most important natural resources in Southern Florida. They provide shoreline protection, build up land areas, provide nutrients to the marine environment, and serve as nurseries for marine species and wildlife habitat for reptiles and wading birds such as herons, egrets, white crown pigeons and gray king birds. Transitional areas may have lower productivity than the wetland areas, but they still have a very high value to organisms feeding upon them. A community of animals will still be dependent upon the transitional vegetation, and removal or stress to that vegetation will also stress the dependent animal elements. On April 22, 1983, the Zoning Board of Monroe County denied the McDonald/Allen application for special use approval to deposit the fill and construct the access road. Reasons for the denial were that the project failed to comply with Sections 19-75(2)a, 19-111, and 19-59(6), Monroe County Code. Section 19-75(2)a requires a determination of the effect of the change under review on that particular property and on surrounding properties. Section 19- 111(a)(4) requires that all applications for a permit in wetland areas consider the natural biological functions, including food chain production, general habitat, nesting, spawning, rearing and resting sites for aquatic or terrestrial species, the physical aspects of natural drainage, salinity and sedimentation patterns, and physical protection provided by wetland vegetation from storm and wave action. Section 19-59(6) requires consideration of the project's compliance with the County's Comprehensive Plan. The Zoning Board was particularly concerned about the fact that the project was contrary to the policy expressed in the County's Comprehensive Plan to prohibit new construction that would threaten the stability of dune ridges, and about the cumulative impact on the wetland areas and on the dune system of several nearby projects for which applications had been submitted. On August 5, 1983, the Board of County Commissioners reversed the denial of the McDonald/Allen application for special use approval by adopting Resolution No. 233-1983. The Resolution authorizes the deposit of fill and construction of the access driveway as requested by the McDonald/Allen application. The Resolution makes no finding that the project meets the requirements of the Monroe County Code or Monroe County Comprehensive Plan. The Resolution also fails to specify any conditions or protective measures that should be met by the applications in regard to design, construction activities or coordination with adjoining land owners to reduce the impacts of the proposed development. No evidence was introduced at the final hearing in this cause to show that the Board of County Commissioners considered these items or any provision for them. An employee of Petitioner was present at the Monroe County Board of County Commissioners meeting on August 5, 1983, when a vote was taken on the McDonald/Allen application. However, Petitioner did not receive a written copy of the Resolution reducing that action to writing until October 14, 1983, when Monroe County transmitted the Resolution by hand-delivery. On August 25, 1983, the State of Florida Department of Environmental Regulation (hereinafter "DER") issued a permit to McDonald/Allen to deposit 433 cubic yards of fill for an access road with four box culverts three feet by eight feet. The permit is based upon Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, jurisdiction and therefore only evaluates impacts on water quality. It does not address impacts on storm surge abatement; marine and wildlife resources habitats; suitability of the proposed project in regard to its location, site characteristics and intended purpose; the effect of the proposed project on surrounding properties (including cumulative impacts of several projects in close proximity of each other); or compliance with the Monroe County Code or Monroe County's Comprehensive Plan. On July 29, 1983, the Zoning Hoard of Monroe County denied the Stage application for special use approval to deposit fill and construct an access road. One of the items considered by the Zoning Board was the permit issued to Respondent Stage by DER on July 13, 1983, to deposit approximately 62 cubic yards of crushed limerock fill for an access road with two 36-inch diameter culverts. The DER permit addressed only impacts to water quality as specified by Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. As was the case with the permit issued to McDonald/Allen, the determination by DER to issue the permit did not include the analysis required by the Monroe County Code and the Monroe County Comprehensive Plan of impacts to natural systems. Reasons cited by the Zoning Board for the application's denial are the project's failure to meet the requirements of the Monroe County Code regarding the Suitability of the use in regard to its location, site characteristics, and intended purpose; and the project's failure to comply with the County's Comprehensive Plan encouraging protection of wetlands to the maximum extent possible and prohibiting new construction that would threaten the stability of dune ridges. On October 28, 1983, the Monroe County Board of County Commissioners reversed the denial of the Stage application for special use approval by adopting Resolution No. 296-1983. Again, there are no protective or limiting conditions specified in the Resolution in regard to construction of the road or its relationship to the remainder of the project. The access road proposed by the McDonald/Allen application will eliminate approximately 4,000 square feet of high-quality submerged mangrove wetlands. This, in turn, would eliminate high-quality habitat used by a variety of large birds such as herons, ibises, little blue herons; gastropods; species of small fish such as killifish, sheepshead minnow, sailfin, mosquito fish; blue crabs, fiddler crabs and Saltwater snakes. The proposed fill road would also present a 325-foot long barrier to the existing tidal flow, thereby impeding the natural flow of water, particularly during a storm event when even very large culverts are blocked by vegetation and other debris. A fill road would also provide a substrate for colonization by exotic vegetation, to the detriment and possible exclusion of native vegetation. In addition, the evidence indicates that at least four more fill roads are proposed in immediate proximity to the proposed McDonald/Allen fill road, within the same 10-acre wetland area. If approved, the cumulative impacts of several roads would be significantly greater than the one road. There would be a significant increase in the direct removal of vegetation and wildlife habitat and an even greater impact on tidal flow through the area with each additional road (even ignoring the fact that each road is merely a portion of the real project). This is because each barrier to tidal flow placed downstream from the source water diminishes the ability of the tidal water to reach other areas even further downstream. The essence of Respondents McDonald/Allen's testimony and exhibits in regard to cumulative impacts is that with proper planning only one access road need be built in the 10-acre wetland area in which the McDonald/Allen property lies. No evidence was submitted to show that such planning efforts exist or are likely to be fruitful. There is no reasonable assurance that only one access road will be sought or constructed in that area; rather, the evidence is to the contrary. Respondent Stage's proposed access road would eliminate a small amount of productive red mangroves and would eliminate transitional wetlands of somewhat lower productivity, thereby exacerbating the existing stresses to the transitional community on the Stage property. The road would also be subject to blockage during a storm event, which would further diminish the existing tidal flow. Current intended use of both the McDonald/Allen and Stage properties is for a single-family residence, although neither applicant has finalized any design for that residence. Construction and occupancy of even a single-family residence in the tropical hardwood hammock on the dune back or dune top of either property can be expected to produce a typical range of impacts to the natural systems. The most significant is the removal of hardwood hammock trees and understory vegetation. At a minimum, clearing is required for a house pad, a turnaround (and parking) area, a septic tank and drain field, and a surrounding area sufficient to accommodate construction equipment and workers. Additional clearing can be anticipated by occupants of a single-family residence who seek to take advantage of ocean breezes and view and who create pathways to the beach. Any opening of the hammock's tree canopy or understory would increase exposure of the lower forest to the drying effects of wind and salt and upset the hammock's microclimate, causing progressive destruction of vegetation. Clearing also provides conditions which make the site conducive to colonization by exotic species. Additional impacts customarily associated with single-family residence occupancy are the introduction of pets who are natural predators of endangered species, of noxious chemicals used for spraying insects, and of intrusion into the habitat of wildlife which now utilize the area and are not tolerant of human activity in immediate nesting and feeding areas. Several dwellings constructed on a dune ridge would cumulatively impact and even further threaten destruction of the hardwood hammock and dune system. Once in place and occupied, a single-family home will create impacts that are extremely difficult to prevent or mitigate and which are uncontrolled by any County ordinance or State regulations. The current and future owners of both the McDonald/Allen and Stage properties have access to that property since either a state-- or county-- maintained road borders one entire side of each of those properties. Accordingly, neither proposed driveway is necessary to provide access to the property. Since the special use approvals given by Monroe County to McDonald/Allen and Stage are not conditioned upon the obtaining of permits for the construction of the now-intended dwelling structure, the actual use of the driveways remains speculative. Although the Stage property may be zoned exclusively for a single-family residence, the McDonald/Allen parcel appears to be in an area of Monroe County in which single-family residences are only one of the uses allowed. Additionally, several years ago Respondent Stage, without first obtaining a permit, has placed fill on his property which covers the width of his property along Long Beach Boulevard. Although Respondent Stage eliminated a wetlands area 100 feet by 75 feet by placing fill therein, he has not been required to remove that fill, and it is speculative as to whether any agency with the authority to require the removal of that fill would do so since no mitigation has yet been required of him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered denying the applications of Respondents McDonald/Allen, Donia, Bobowski, and Stage for special use approval. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983): There are no changes in the proposal by Respondent Donia that would entitle her to receive the special use approval requested herein; There are no changes in the proposal by Respondent Bobowski that would entitle him to receive the special use approval requested herein; Respondents McDonald and Allen could make their driveway application eligible for a special use approval by altering the design of the driveway to piling or boardwalk construction rather than fill construction; and, Respondent Stage can make his driveway application eligible for a special use approval by altering the project design so that the primary structure utilizes the portion of his property which was previously filled. It is further, RECOMMENDED THAT each application for special use approval submitted herein remain ineligible to receive such approval until such time as it can be demonstrated, such as through the issuance of all necessary permits, that the intended primary use--residential construction--will not degrade or destroy the tropical hardwood hammock, dune ridge, or other natural systems located on or surrounding Respondents' properties. DONE and RECOMMENDED this 8th day of April, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1985. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 John T. Herndon, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 Sheri Smallwood, Esquire County Attorney, Monroe County 310 Fleming Street Key West, Florida 33040 James Hendrick, Esquire Albury, Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040 Catherine Donia Post Office Box 502 Big Pine Key, Florida 33043 Thomas Bobowski Post Office Box 502 Big Pine Key, Florida 33043 Sarah E. Nall, Esquire C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background 1. E. K. Edwards (Edwards) and Richard J. Clark (Clark), who are non-parties, own two tracts of land totaling 43.76 acres approximately four or five miles west-northwest of the City of Pensacola in unincorporated Escambia County. The larger tract (known as the Northern Parcel and owned by Edwards) consists of one parcel totaling 26.76 acres and is located at 2700 Blue Angel Parkway, also known as State Road 173. The second tract (known as the Southern Parcel and owned by Clark) consists of four contiguous parcels totaling around 17 acres and is located approximately 560 feet south of the Northern Parcel at the northeastern quadrant of the intersection of Blue Angel Parkway and Sorrento Road (intersection). The two tracts are separated by two large privately-owned lots that currently have residential uses. (However, the land use on one of those parcels, totaling almost 9 acres, was recently changed to a Commercial land use designation. See Finding of Fact 15, infra.) On July 10, 2002, a realtor (acting as agent on behalf of the two owners) filed an application with the County seeking to change the land use on the FLUM for both the Northern and Southern Parcels from LDR to Commercial. The LDR category allows residential densities ranging from one dwelling unit per five acres to 18 dwelling units per acre, as well as neighborhood commercial uses. The Commercial category would allow the owners to place a broad range of commercial uses on their property, such as shopping centers, professional offices, medical facilities, convenience retail, or other similar uses. On November 20, 2002, the County Planning Board (on which Petitioner was then a member) considered the application and voted unanimously to change the land use classification on the Southern Parcel to Commercial. It also voted to change the non-wetlands portion of the Northern Parcel to Commercial. However, the request to change the land use on the wetlands portion of the Northern Parcel was denied. This recommendation was forwarded to the Board of County Commissioners (Board), which modified the Planning Board's recommendation and approved the application as originally submitted. The amendment was then sent to the Department for an in compliance determination. On June 13, 2003, the Department issued its Objections, Recommendations, and Comments (ORC) Report. In the ORC, the Department expressed concerns that there were insufficient "adequate data and analyses to demonstrate the suitability of the [Northern Parcel] for the proposed Future Land Use designation" because of the presence of on-site wetlands. The ORC went on to say that the County had failed to demonstrate how the proposed amendment would be consistent with four other Plan provisions that prohibit the location of commercial and industrial land uses in certain types of wetlands. The ORC recommended that the County "provide a more detailed characterization of the site and the surrounding area relative to the natural resources [wetlands] on the amendment site and the general area." After the issuance of the ORC, Mr. Edwards retained an ecological consultant, Dr. Joe A. Edmisten, to address the Department's concerns. On July 16, 2003, Dr. Edmisten submitted a 14-page Report in which he essentially concluded that while there were wetlands on the site, there were no endangered, threatened, rare, or listed plant or animal species. That Report has been received in evidence as Petitioner's Exhibit 4. In light of this new information, the Planning Board again considered the matter on August 20, 2003, and by a four- to-one-vote recommended that the application, as originally filed, be approved. The matter was then forwarded to the Board. In response to an inquiry by a Board member at the Board's meeting on September 4, 2003, Dr. Edmisten stated that he found a "few pitcher plants in the wetlands [on Mr. Edwards' property]," including Sarracenia leucophylla, which is on the State (but not federal) Endangered Plant List. See Fla. Admin. Code R. 5B-40.0055(1)(a)334. Even though this information had not been disclosed in the Report, by a three- to-two vote, the Board adopted Ordinance No. 2003-45, which approved the change to the FLUM for both the Northern and Southern Parcels. On October 24, 2003, the Department issued its Notice of Intent to Find the Escambia County Comprehensive Plan Amendment in Compliance. On November 17, 2003, Petitioner, who resides, owns property, and operates a business within the County, and submitted written or oral comments, objections, or recommendations to the County before the amendment was adopted, filed his Petition alleging that the plan amendment was not in compliance. Petitioner is an affected person within the meaning of the law and has standing to file his Petition. In the parties' Pre-Hearing Stipulation, Petitioner contends that there is inadequate data and analyses relative to the natural environment (wetlands), traffic concurrency, and urban sprawl to support the amendment. As further clarified by Petitioner, he does not challenge the change in the FLUM for the Southern Parcel, but only contests that portion of the amendment which changes the land use on the Northern Parcel, on which wetlands are sited. In view of this, only the Northern Parcel will be considered in this Recommended Order. The Property The Northern Parcel fronts on the eastern side of Blue Angel Parkway approximately 1,400 feet north of the intersection. In broader geographic terms, the property is in western Escambia County and appears to be several miles west- northwest of the Pensacola Naval Air Station (which lies west- southwest of the City of Pensacola) and several miles south of U.S. Highway 98, which runs east-west through the southern part of the County. Blue Angel Parkway is a minor arterial roadway (at least where it runs in front of the Northern Parcel) and begins at the Pensacola Naval Air Station (to the south) and runs north to at least U.S. Highway 98. From the Naval Air Station to the intersection, Blue Angel Parkway appears to have four lanes, and from that point continuing past the Northern Parcel to U.S. Highway 98, it narrows to two undivided lanes. At the present time, an old borrow pit sits on the eastern side of the land, for which the property was given a special exception by the County's Zoning Board of Adjustments in March 1995. Also, there are at least three other ponds (or old borrow pits) formerly used by the owner for catfish farming; two large, unused metal buildings (apparently hangars) moved from the Naval Air Station to the property as military surplus; and numerous stored empty tanks in the southeastern corner of the property. The remainder of the property is vacant. When Dr. Edmisten's Report was submitted in July 2003, all of the ponds were filled with water due to recent heavy rains. Because of existing development at all corners of the intersection except the southwest corner, the intersection has been designated by the County as a commercial node, and the County considers the node to extend from the intersection northward along the eastern side of Blue Angel Parkway to the Northern Parcel. (However, on the western side of the road, the County has determined that the node terminates at the end of a parcel on which a Wal-Mart Super Center sits, and that further commercial development beyond that point would be inappropriate.) This determination is consistent with the Commercial land use classification found on the western portion of the Northern Parcel. See Finding of Fact 13, infra. The property presently carries a split future land use: an approximate 150-foot deep sliver of land which fronts on Blue Angel Parkway is classified as Commercial, while the remainder of the parcel is LDR. This dichotomy in land uses stems from a decision by the County in 1993 (when the Plan was adopted) to designate a narrow commercial strip on both sides of Blue Angel Parkway from just south of the intersection to Dog Track Road, which lies north of the Northern Parcel. The property also carries an Industrial zoning classification (presumably related to the mining activities), even though the land use on most of the parcel is residential. By his application, Edwards is seeking to "unify" the back or eastern portion of his property, which is now LDR, with the western portion fronting on Blue Angel Parkway, which is classified as Commercial. To the east of the Northern Parcel is Coral Creek, a fairly large residential subdivision platted in the 1990s. Some of the single-family lots in that subdivision back up to the eastern boundary of the property. The property to the north is vacant, is populated with some pitcher plants, and is classified as residential. Across the street and to the southwest is a new Wal-Mart Super Center which opened in the last year or so at the northwestern quadrant of the intersection. (The northern boundary of the Wal-Mart Super Center parcel is directly across the street from the southern boundary of the Northern Parcel.) The property directly across the street and extending to the north is vacant and classified as Residential. That parcel also contains pitcher plants and is informally designated as "pitcher plant prairie." The property which separates the Northern and Southern Parcels is classified as Residential, except for 8.98 acres which were recently changed from LDR to Commercial through a small-scale development amendment approved by the Department. See Gregory L. Strand v. Escambia County, DOAH Case No. 03-2980GM (DOAH Recommended Order Dec. 23, 2003; DCA Final Order Jan. 28, 2004). The Final Order in that case, however, has been appealed by Petitioner. While the precise amount of wetlands on the site is unknown, the record does indicate that wetlands exist on "approximately" one-half of the Northern Parcel, or around thirteen or so acres, leaving a like amount of uplands. (Therefore, even if the property is reclassified, the amount of development on the property will be restricted in some measure through the application of the County's Wetlands Ordinance found in the Land Development Code.) A small area of wetlands exists on the western side of the property near Blue Angel Parkway while a larger wetland system lies on the eastern side of the property and acts as a buffer with the Coral Creek subdivision. The wetlands are under the permitting jurisdiction of the United States Corps of Engineers, the Department of Environmental Protection, and the County. Petitioner's Objections Petitioner contends that the amendment is not in compliance because there is inadequate data and analyses relative to conservation (wetlands), traffic, and urban sprawl to support the change in the land use.2 These issues will be addressed separately below. Wetlands As to this objection, Petitioner's principal concern is that if the land use change is approved, there will be much more intense development on the property which will result in a loss of wetlands, even with mitigation. Citing Policy 11.A.2.6.d of the Coastal Management Element of the Plan, he contends that there is insufficient data and analyses to support the plan amendment's distribution of land uses in such a way as to minimize the effect and impact on wetlands. The cited policy contains provisions which govern the development of lands within wetland areas, including one provision which states that "commercial and industrial land uses will not be located in wetlands that have a high degree of hydrological or biological significance, including the following types of wetlands: . . . Wetlands that have a high degree of biodiversity or habitat value, based on maps prepared by the Florida Fish and Wildlife Commission or Florida National Areas Inventory, unless a site survey demonstrates that there are no listed plant or animal species on the site." In Case No. 03-2980GM, supra, which involved a change in the FLUM on a parcel of property which separates the Northern and Southern Parcels, Petitioner contended, among other things, that the terms of Policy 11.A.2.6.d should apply whenever the FLUM is being amended, and that because there were wetlands on the parcel, along with two types of endangered plants, the policy prohibited a change from a residential to a commercial land use. In rejecting that contention, however, the Department approved and adopted language by the Administrative Law Judge which concluded, for several reasons, that "the County intended Policy 11.A.2.6.a through e to apply to decisions of the County regarding development applications and not to changes in future land use designations or categories in a FLUM." (Recommended Order, page 19). Therefore, the policy applies to development applications, and not to FLUM amendments, and does not have to be considered at this juncture. (That policy, and the County's Wetlands Ordinance, will obviously come into play at the time a site plan is filed and the owner seeks to develop the property.) As such, there is no need for data and analyses at this time to demonstrate that the policy has been satisfied. As noted above, after the Department issued its ORC, Mr. Edwards engaged the services of Dr. Edmisten, who performed a study and prepared a Report that evaluated the wetlands on the Northern Parcel. That Report constitutes much of the data and analyses which support the amendment. Despite the presence of one endangered plant species, the Report indicates that the wetlands do not have a high degree of hydrological or biological significance; that the change in the FLUM is consistent with all relevant policies in the Plan, including those cited in the ORC; that a mitigation plan will be offered prior to any development; and that all wetlands issues will be addressed during the development stage. The Report also indicates that among other things, Dr. Edmisten utilized the National Wetlands Inventory Map in reaching his conclusions. The Department reviewed the document and found that it constituted the best available data and analyses, that the data were analyzed in a professional manner, and that the County reacted to the data in an appropriate manner when it adopted the amendment. This is especially true since the County has provisions in its Plan for wetlands avoidance and fully considers these issues through the site-review process. Given these considerations, it is at least fairly debatable that there exist adequate data and analyses regarding wetlands to support the change in the land use on the property. Traffic Petitioner also contends that there is a lack of adequate data and analyses to demonstrate that the proposed change in land use will not adversely impact traffic in the area. More specifically, he contends that the County failed to perform an analysis of infrastructure capacity, and that it also failed to include information that Blue Angel Parkway is not in its five-year plan for improvements. Data and analyses were provided in the form of a spreadsheet dated November 6, 2002, and entitled Traffic Volume and Level of Service Report (Traffic Report). The Traffic Report contained several categories of information regarding traffic volume, Level of Service (LOS), and other transportation information. (See Petitioner's Exhibit 1) The data were far more detailed than data previously used by the County on other amendments of this size and character, and they were based on Florida Department of Transportation (DOT) accepted standards of traffic calculations. The data and analyses were the best available at the time the plan amendment was adopted. The data shows that the section of Blue Angel Parkway on which the Northern Parcel fronts has an adopted LOS of "D." At the time the amendment was adopted, the service volume on that portion of the road was 74 percent, which means that the roadway was operating at 74 percent of its capacity. Therefore, when the amendment was adopted, the roadway was not failing, and it could handle additional traffic, including any that might be associated with the future development of the land. Petitioner also contends that the County's study was flawed because the County used so-called "Art Tab" software, which became outdated after September 1, 2002. (Art-Tab software has now been updated and is called Free Plan software.) He further suggests that the County should have performed a new study using updated software. Under DOT requirements set forth in its Quality/Level of Service Handbook, however, the County was not required to redo its analysis; rather, it was required to use the new software only in the event further studies were required. Because Blue Angel Parkway was not failing at the time the study was performed, it was not necessary for the County to undertake a new study. During the interagency review process, the DOT did not issue any objections, recommendations, or comments to the Department concerning the amendment. Finally, Petitioner contends that because the County did not have Blue Angel Parkway on any road improvement list at the time the amendment was adopted, its analysis of infrastructure capacity was flawed. See Section 163.3177(3)(a), Florida Statutes, which requires that each local government's comprehensive plan contain a capital improvements element with a component which outlines the principles for correcting public facility deficiencies covering at least a five-year period. Whether the County's Plan contains such a component is not of record. In any event, even if the County failed to consider the fact that Blue Angel Parkway was not scheduled for upgrading when the amendment was adopted, given the other data and analyses available at that time (the traffic spreadsheet), which reflected that the roadway was operating below capacity, the County had sufficient information regarding infrastructure capacity to support the amendment. Based on the foregoing, it is at least fairly debatable that the amendment has adequate data and analyses relative to traffic impacts to support the land use change. Urban sprawl Finally, Petitioner asserts that no data were gathered and no analyses were performed to demonstrate that the change in land use will discourage urban sprawl. In this case, the Department did not require that the County perform an urban sprawl analysis, given the type of surrounding land uses; the relative small size of the Northern Parcel; the absence of any land use allocation problems; the ability of the owner to now place up to 18 units per acre and/or neighborhood commercial development on the property under the current LDR classification; and the fact that the Northern Parcel is located on the edge of a rapidly urbanizing area of the County. At the same time, Petitioner presented no evidence which supported the need for such a study. The Northern (and Southern) Parcel is located in a rapidly urbanizing area of the County and is close to several other urban uses. Indeed, as noted earlier, there is a Wal- Mart Super Center across the street at the northwestern quadrant of the intersection, and a mix of commercial and residential uses abut the intersection to the southeast. All four corners of the intersection have been designated as a commercial node in the County's draft Southwest Sector Plan, and the County has determined that the node continues northward on the eastern side of the road to and including the Northern Parcel. As a general rule, the Department considers the size and shape of nodes to be a local government decision, and it found no reason here to question that determination. The Plan encourages commercial development at intersectional nodes. Under Florida Administrative Code Rule 9J- 5.003(134), urban sprawl is defined in part as "urban development or uses which are located in predominately rural areas." Indicators of urban sprawl include "[t]he premature or poorly planned conversion of rural land to other uses," and the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area." The evidence does not support a finding that the amendment will result in the poorly planned conversion of rural lands, or the creation of a land use that is not functionally related to land uses that predominate the adjacent area. Given these considerations, Petitioner has not proven beyond fair debate that the plan amendment will result in urban sprawl, or that the County lacked adequate data and analyses related to urban sprawl to support the change in the land use.
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 plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance. DONE AND ENTERED this 6th day of May, 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 6th day of May, 2004.
The Issue The issue is whether a development order adopted by Respondent City of Marathon by Resolution PC00-09-04 is consistent with the comprehensive plan, land development regulations, and statutes.
Findings Of Fact Respondent City of Marathon (Marathon) was incorporated on November 30, 1999. It adopted as its land development regulations (LDR) the LDRs of Monroe County in effect at the time of Marathon's incorporation. Marathon is within The Florida Keys Area of Critical State Concern. This case involves a development order that Marathon issued to Respondent Banana Bay of Marathon, Inc. (BB). As Planning Commission Resolution 00-09-04, the development order authorizes BB to add 12 motel rooms to an existing motel in return for imposing certain restrictions on the use of wet slips at its adjacent marina that is part of the same motel/marina development. The restrictions require the removal of cable television connections from 12 slips and limitation upon vessels using these 12 slips to those without plumbing facilities. For the remaining wet slips at the marina, the development order requires BB to limit their use to no more than 18 vessels at one time and to provide mandatory sewage pumpout for these vessels. At various points in the record and this recommended order, references to a "transfer" of 12 marina slips for 12 motel rooms refer to the conditions set forth in this paragraph. BB owns 7.39 acres of upland and 2.67 acres of adjacent bay bottom in Marathon at mile marker 49.5 (Subject Property or, as developed, Banana Bay). The Subject Property runs from U.S. Route 1 to the water. The Subject Property contains 60 motel rooms in two buildings, a conference room, a motel office, support buildings, three apartments suitable for employee use, and a marina. The marina includes 40-50 slips, depending upon the size of the moored vessels. The Subject Property is zoned Suburban Commercial (SC) and Mixed Use (MU). About 2.4 acres (104,544 square feet) running about 350 feet from U.S. Route 1 is SC. About 4.99 acres (217,364 square feet) is zoned MU. The additional 2.67 acres of adjacent bay bottom are also zoned MU, although the submerged acreage is unimportant for reasons discussed below. Twenty-five of the motel rooms are in SC, and 35 of the motel rooms are in MU, although the distinction between zoning districts is also unimportant for reasons discussed below. LDR Code Section 9.5-267 authorizes ten "rooms" per ”acre" as "allocated density" for motel uses in SC and MU and 15 "rooms" per "buildable acre" as "maximum net density" for motel uses in SC and MU. (There is no difference between "hotels" and "motels" in this case; all references to "motels" include "hotels.") Three fundamental questions emerge concerning the application of these two density limitations to this case. The first is whether BB must satisfy both the "allocated density" and "maximum net density" limitation. This is not a difficult issue; BB's proposal must satisfy each of these density limitations. The second question is what is included in the areas under each of these density limitations. Notwithstanding the use of "gross acres" in the "allocated density" formula, it is necessary to net out certain areas--just less than is netted out in the "maximum net density" formula. The third question is what constitutes a "room." When applied to marine-based units, the definition of a "room" presents a difficult and important issue. As a whole, the LDRs imply that no marine-based dwelling units should count as "rooms," but one provision specifically requires the inclusion of "live-aboard" units in density calculations. The first question requires little analysis. As noted below in the discussion of the two types of areas, "allocated density" and "maximum net density" provide two separate measures of the intensity of use of land. The allowable density for "maximum net density" is never less than the allowable density for "allocated density" because "maximum net density" is a safeguard to ensure that, after netting out from the parcel those areas reserved for open space, setbacks, and buffers, the intensity of use will not be excessive. Nothing whatsoever in the LDRs suggests that Marathon may issue a development order for a proposal that satisfies the "maximum net density," but not the "allocated density." These two densities limitations operate in tandem, not in the alternative. The calculation of the "allocated density" requires consideration of the second and third questions identified above. The issue of area seems straightforward. LDR Code Section 9.5-4(D-3) defines "density or allocated density" as "the number of dwelling units or rooms allocated per gross acre of land by the plan." LDR Code Section 9.5-4(D-4) defines "maximum net density" as "the maximum density permitted to be developed per unit of land on the net buildable area of a site, as measured in dwelling units or rooms per acre." LDR Code Section 9.5-4(G-4) defines "gross area" as "the total acreage of a site less submerged lands and any dedicated public rights-of-way." LDR Code Section 9.5-4(N-4) defines "net buildable area" as "that portion of a parcel of land which is developable and is not open space required by section 9.5-262 or 9.5-343 or required minimum bufferyard under article VII division 11 or required setbacks under section 9.5-281." The area of land involved in determining "allocated density" is greater than the area of land involved in determining "maximum net density." But the area of land involved in determining "allocated density" is itself a net amount. The LDRs expressly require reducing the gross areas by any submerged land and dedicated public rights-of-way. However, any reasonable application of the LDRs also requires reducing the gross areas used for the motel "allocated density" calculation by the minimum areas required to support other uses on the Subject Property. If the only use of the Subject Property were motel rooms, the "allocated density" limit of ten units per acre (10:1) would allow 73.9 rooms. But the Marathon Planning Commission Staff Report dated September 18, 2000, correctly netted from the Subject Property the land areas required to support the commercial aspects of the hotel and the commercial apartments. These reductions leave a total of 5.86 acres available to support the motel rooms. At a density of 10:1, the Subject Property could therefore support a total of 58 motel rooms. The Planning Commission incorrectly used the 15:1 ratio for "maximum net density" in concluding that the Subject Property could support a total of 67.65 motel rooms. Evidently, the Planning Commission used the "maximum net density" because it was not using "gross area" or "gross acres" (the terms are synonymous under the Code) in calculating the area. The netting reduction necessary to calculate whether BB's proposal satisfies the "maximum net density" limitation would require the calculation of the area of the Subject Property that must be devoted to open space, setbacks, and buffers. The Planning Commission probably undertook this step in calculating the "maximum net density" for the Subject Property, as its figures seem to include unstated deductions for the 20 percent open space plus another factor, probably for setbacks and buffers--all of which are discussed in its report. However, the Planning Commission erroneously neglected to apply the "allocated density" limitation to the "gross acres," exclusive of submerged land, public rights-of-way, and the minimum land required to support the other upland uses. As noted above, doing so would have yielded no more than 58 motel rooms. At present, the Subject Property contains 60 hotel or motel rooms. The Subject Property therefore cannot support the addition of another 12 hotel or motel rooms, given its "allocated density" of only 58 rooms. In general, BB justifies the addition of 12 rooms to the front motel by arguing that it is only transferring these units from the 12 existing wet slips. It is unnecessary to determine whether a transfer under these facts is lawful when, if these 12 slips count as units, the Subject Property is already 14 units over its "allocated density." The resolution of the third question--what constitutes a "room"--dispenses with this argument. Thirty of the existing 40-50 boat slips in the marina have water, electric, and cable hook-ups and are presently used for some form of habitation. Most vessels berth at the marina for two or three days, although the average stay is slightly over one month. The average stay at the 30 slips offering utilities, though, is two to three months. Typically, two persons use a vessel berthed at the marina for more than a couple of days. BB seals the discharge ports of all vessels mooring at the marina for any appreciable period of time. BB provides a sewage pumpout service for these and other vessels. The wastewater from the marina operations goes to a septic tank, in contrast to the wastewater from the motel operations, which goes to an onsite package plant. Persons mooring at the marina for at least two months normally obtain telephone service and may obtain cable television service, in addition to the potable water and electrical services provided by BB. The marina also provides rest rooms, laundry facilities, showers, a bar, limited food service, and a mail box. However, BB rules require that all persons berthing at the marina register a permanent address because the slips are "not considered permanent housing." At the request of the Florida Keys Aqueduct Authority and the Monroe County Planning Department, BB has limited rental agreements at the marina to a maximum of one month, although some persons enter into back-to-back rental agreements. Persons staying more than one week often have cars. Contrary to BB's contentions, none of these slips provides additional density for the Subject Property, and therefore the 12 slips are not available for transfer to the motel. For the same reason, as discussed below, the proposed transfer of the 12 units would also violate the Rate of Growth Ordinance (ROGO). In two respects, the record reveals that the conversion of marine-based residential uses to upland residential uses might facilitate the achievement of important land use planning objectives. First, the wastewater collected from the marina is directed to a septic tank, and the wastewater collected from the motel is directed to a package plant. Absent a significantly reduced flow from the marine-based residential use, the upland residential use would therefore impact the adjacent waters to a lesser extent. Second, marine-based residential users may be more reluctant to evacuate for an approaching hurricane than upland residential users. Absent a significantly greater number of visitors during hurricane season if the 12 units were taken from the marina slips and added to the motel, the upland residential use might therefore facilitate timely hurricane evacuation of the vulnerable Keys. However, the record was relatively undeveloped on these two points, and these possible advantages to the conversion of marine-based residential uses to upland-based residential uses do not override the LDRs. The LDRs may treat the more intense residential use associated with "live-aboards" differently than the less intense residential use associated with other moored vessels. Although the LDRs' treatment of "live-aboards" may not be entirely consistent, any inconsistency is irrelevant in this case because the moored vessels at the Banana Bay marina do not qualify as "live-aboards." As stipulated for the purpose of this case, LDR Code Section 9.5-4(T-4) defines a "transient residential unit" as "a dwelling unit used for transient housing such as a hotel or motel room, or space for parking a recreational vehicle or travel trailer." LDR Code Section 9.5-4(D-31) defines a "dwelling unit" as "one (1) or more rooms physically arranged to create a housekeeping establishment for occupancy by one (1) family with separate toilet facilities." LDR Code Sections 9.5-4(D-23) through 9.5-4(D-30) identify the various types of dwellings that may contain "dwelling units.” These dwellings are, respectively, detached zero-lot-line dwellings, multifamily apartment dwellings, attached dwellings, detached individual dwellings, duplex dwellings, commercial apartment dwellings, rooftop dwellings, and townhouse dwellings. The frequent references to "open yards" in these definitions precludes the application of these definitions to moored vessels, even "live- aboards." The exclusion of all moored vessels, including "live-aboards," from density calculations is also suggested by two other portions of the LDRs. As is typical, LDR Code Section 9.5-120.1 provides that the mechanism for enforcing density limitations is in the issuance of building permits, but this enforcement mechanism is of doubtful use in regulating vessel moorings, which do not typically involve the issuance of a building permit. Also, the density definitions discussed above both refer to the development of various types of residential uses on "land." Moreover, none of the zoning districts established in Marathon's LDRs measures the intensity of marina uses, including vessels moored for extended periods as live-aboards, by imposing some sort of marine density limitation, either by including the moored dwelling units or the submerged acreage. Because the LDRs did not intend to include such marine-based uses in density calculations, LDR Code Section 9.5-267, which is a table setting forth "allocated densities" and "maximum net densities," covers only upland-based uses, including recreational vehicle or campground spaces per acre, and does not extent to marine-based uses, such as live-aboard marina slips. However, two provisions in the LDRs require density calculations to include "live-aboards." LDR Code Section 9.5-308, which seems to be an older provision in the LDRs, provides that "each live-aboard shall count as a dwelling unit for the purpose of calculating density limitations in the district in which it is permitted." Better incorporated into the present regulatory scheme of the LDRs, LDR Code Section 9.5-120.1 defines a "residential dwelling unit" as a "dwelling unit," including a "transient rental unit," as defined in LDR Code Section 9.5-4(T-3), and "live-aboard vessels," as defined in LDR Code Section 9.5-4(L-6). However, LDR Code Section 9.5-4((L-6) states that a "live-aboard vessel" is "any vessel used solely as a residence or any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence." The record does not suggest that any of the moored vessels were used "solely" as a residence, as distinguished, for instance, from a vessel used for residential and recreational purposes, or that any of the mixed-use vessels served as the occupants' legal residence. Absent a finding that the moored vessels constitute "transient residential units," ROGO does not support this proposed transfer of residential uses from marine-based to upland-based. LDR Code Section 9.5-123(f)(3) authorizes the transfer of an existing "residential dwelling unit" from one site to another within the same subarea. However, LDR Code Section 9.5-122 defines a "residential dwelling unit" to extend only to "live-aboards." For the reasons already discussed, the less intense residential uses associated with the vessels moored at Banana Bay's marina preclude their treatment as "residential dwelling units" eligible for transfer to the motel. Petitioner has proved that the development order is materially inconsistent with the LDRs. LDR provisions governing the density and intensity of residential development go to the heart of effective land use planning, especially in an area as sensitive as the Keys. For these reason, it is unnecessary to consider the consistency of the development order with the more general provisions of Marathon's comprehensive plan, on which Marathon's LDRs are based.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying the request of Banana Bay of Marathon, Inc., to approve the transfer of 12 slips to 12 rooms in a motel on the Subject Property. DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2001. COPIES FURNISHED: Barbara L. Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Mitchell A. Bierman Weiss Serota 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 James S. Mattson James S. Mattson, P.A. Post Office Box 586 Key Largo, Florida 33037
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
Findings Of Fact Background This case involves the designation of six contiguous parcels located in the southern half of the City of St. Petersburg Beach (City), which is located on a barrier island sheltering the southern tip of the mainland of Pinellas County from the Gulf of Mexico. As a whole, the six parcels are bounded by the Gulf of Mexico to the west, 37th Avenue to the south, Gulf Boulevard to the east, and other privately owned property to the north. The southern boundary of the parcels is about 330 feet north of the Don Cesar Hotel and the Pinellas Bayway, which connects the City to the mainland of Pinellas County,. Gulf Boulevard in the area of the parcels is a four-lane arterial paralleling the beach. The northernmost of the six parcels measures about 61 feet by 290 feet and extends from Gulf Boulevard to the Gulf. The northernmost parcel, which contains apartments, is also known as Lot 33, Bellvista Beach, as recorded in Plat Book 7, Page 34, Public Records of Pinellas County, Florida. Immediately south of the northernmost parcel lies the parcel on which the Shalimar Motel is located. This irregularly sized parcel measures roughly 158 feet along Gulf Boulevard, 110 feet on its south boundary, 120 feet on its north boundary, and 175 feet on the west boundary. The Shalimar Motel has been in operation on this parcel since no later than 1962. The remaining four parcels6 separate the Shalimar Motel from the Gulf. Each parcel measures about 50 feet wide and 175 feet deep. A narrow road or access easement runs in a north- south direction between these parcels and the Shalimar Motel. Three of the 50-foot parcels are developed as singled family residences. The second parcel from the south is vacant. The four 50-foot parcels plus the Shalimar Motel parcel are also known as Block G, Don Cesar Place, as recorded in Plat Book 13, Pages 15-20, Public Records of Pinellas County, Florida. Including the interior road or easement, the six parcels contain about 61,508 square feet or about 1.41 acres. The northernmost parcel is about 17,739 square feet or about 0.41 acres, and the remaining parcels are about 43,769 square feet or nearly one acre. Photographs produced at the hearing depict a dune that is well covered by vegetation to the south of the six parcels. No significant vegetation and little dune remains immediately north of the parcels. Hardly any dune protects the northernmost parcel, whose seawall is several feet landward of the adjoining seawalls. A small area of dense vegetation has developed in the corner of the inset seawall and the northern face of the seawall of the northernmost of the four 50-foot parcels. The dune and accompanying vegetation begin to develop toward the southern end of the northernmost of the four 50-foot parcels. It is difficult to determine the location of the dune line relative to the west boundaries of the four 50-foot parcels. The dunes appear to have widened recently and, in the process, are covering some permanent improvements evidently at the extreme westerly end of the parcels. However, the evidence fails to establish the precise location of the west boundary of the four 50-foot parcels relative to the dune line. The vacant 50-foot parcel is posted as the private property of the Shalimar Motel. A narrow portion of dune and vegetation on the vacant parcel has been eliminated by pedestrian traffic using a paved sidewalk running toward the motel from just behind the dune line. A considerable amount of sand has been swept by the wind through the pathway. Much of the sand has been deposited against a small metal shed lying behind the dune where it reforms to the north of the pathway. The dune and vegetation begin to increase in size along the southernmost of the four 50-foot parcels. The band of vegetation doubles in width at the west end of 37th Avenue and maintains this width as it proceeds to the south. The City adopted its revised local comprehensive plan on November 7, 1989 (Plan). Except for the westerly 30 feet of the northernmost parcel, which was designated Recreation/Open Space, the future land use map (FLUM) designates all-of the six parcels as Low-Medium Density Residential,7 which allows residential development at densities up to 10 units per "net" acre (10:1). All land to the west of the Coastal Construction Control Line is designated Preservation. Medium Density/Tourist Residential allows residential development at densities up to 15 units per "gross" acre (15:1) and tourist development at densities up to 30 units per "gross" acre (30:1). Recreation/Open Space is for "recreational uses." The Department of Community Affairs (DCA) issued a Notice of Intent to find the revised plan in compliance. No affected person filed a petition challenging the determination or plan. By Ordinance No. 90-29, which became effective December 6, 1990, the City adopted the plan amendment that Petitioners challenge. The plan amendment incorrectly recites that the Plan, prior to amendment, designates all of the subject parcels as Low-Medium Density Residential. In any event, the plan amendment designates all six parcels, in their entirety, as Medium Density/Tourist Residential. Data and Analysis Density and Compatibility The data and analysis report that the population of the City was 9354 persons in 1980. Based on data-supplied by the Bureau of Economic and Business Research of the University of Florida, the data and analysis note that the population of the City increased at an average annual rate of 1.77% from 1972 to 1986, falling to a rate of 1.08% during the last seven years of the period. The data and analysis disclose that tie City is almost entirely built out. Only 33.5 acres, or 2.5%, of the City remains vacant. About one-third of the vacant land has been platted into 45 residential lots. Except for about seven acres designated commercial, the remainder of the vacant land in the City has been designated residential at densities ranging from 7.5 to 15 units per acre. A lengthy discussion in the data and analysis considers various methods for projecting the future population of the City during the planning timeframe. The data and analysis recommend that [a]fter consideration of the character of the community, the amount and character of vacant land remaining in the City, the desires of the residents to limit population growth, and the distaste for further high density/high rise residential construction, it was determined that for purposes of this Comprehensive Plan, the City . . . would be identified as a built-out community. As such, no population projections would be made beyond the carrying capacity of the land of 10,465. Future Land Use Element (FLUE), page 21. The data and analysis assume that 1.94 persons will occupy a permanent dwelling unit and 2.5 persons will occupy a transient or tourist dwelling unit, such as a motel room. After adjustment for the considerable number of nonresidents who own residences within the City, as well as applicable vacancy rates, the seasonal population was determined to be 2534 persons residing in permanent housing and 6071 persons residing in transient tourist facilities. When these seasonal populations are added to the permanent population of 10,465, the total projected population is 19,070 persons throughout the planning period. Expanding on the discussion of the preferences of residents and the built-out condition of the City, the land use analysis states: it can be assumed that any development on the remaining vacant land will be in keeping with the density and intensity of the surrounding residential properties. Any deviation from this would be counter to the direction under which this Element was prepared. FLUE, page 40. Acknowledging that no part of the City is blighted or in need of redevelopment, the analysis notes: There have been complaints regarding the development of multifamily projects adjacent to commercial tourist accommodations and, to a lesser degree, general commercial establishments. The problem is most pronounced along the Gulf side of Gulf Boulevard, in the Tourist District. Due to the purpose of this area, intense development is in keeping with its character. Although little can be done to correct the problems created by past development, amendments to' the City's land development regulations could afford additional buffering and lessen future incompatibility. With regard to redevelopment within the Tourist District, local officials are of the opinion that little change will occur in the motel/hotel density. Recent projects have resulted in the demolition of preexisting establishments and the erection and consolidation of a single new business. An example of this would be the Trade Winds Resort, where one motel was enlarged through the demolition and consolidation of three adjacent ones. FLUE, pages 40-41. The data and analysis recognize distinct neighborhoods divided by 37th Avenue. South of 37th Avenue and north of 32nd Avenue, the data and analysis identify the "Don Cesar Area" as follows: Primarily residential in character with both low density and medium density uses (single- family detached and multifamily). It is also a noteworthy area in that it contains the historic landmark Don Cesar Hotel which separates the residential Pass-a-Grille area from the more intense commercial and tourist facilities to the north. FLUE, page 6. Describing the neighborhood to the north, the data and analysis identify the "Gulf Boulevard Tourist District (Gulf Boulevard between 37th and 64th Avenues)": The most intense land use area, this district is linear in shape. It is comprised of general commercial, high density multifamily residential and commercial tourist accommodations adjacent to Gulf Boulevard. It is the one area of the City that can be considered to contain inconsistent land uses, i.e., multifamily adjacent to commercial tourist accommodations. Id. Two blocks separate the subject parcels from the Don Cesar Hotel to the south. A narrow road runs north-south through both blocks, and the lots within these two blocks are smaller than the lots constituting the six subject parcels. The dominant existing land use in these blocks is residential, with many single family dwelling units. The Plan designates the Gulf side of these two blocks as Low Density Residential and the Gulf Boulevard side as Medium Density Residential. A strip about 60 feet deep divides the Gulf side lots from the Gulf and is designated Recreation/Open Space. The west boundary of the 60- foot strip is the Coastal Construction Control Line. Thirty-Seventh Avenue is the last road connecting Gulf Boulevard to the beach for about 4300 feet to the north. After a second such road just to the north of the first, no road intersects Gulf Boulevard from the west for another 3600 feet. Except for one large parcel designated Recreation/Open Space, the land to the north of the six parcels is exclusively designated Medium Density/Tourist Residential for 3600 feet. At this point, a parcel somewhat smaller than the combined size of the six parcels is designated Medium Density Residential and two very small areas are designated Recreation/Open Space. The remaining land between Gulf Boulevard and the beach is designated Medium Density/Tourist Residential for almost one mile north of the Medium Density Residential parcel, except for a smaller parcel designated Residential/Office/Retail and two more strips of Recreation/Open Space just to the north of the Medium Density Residential parcel. The City contains about 1303 acres with about 813 acres, or 62%, devoted to existing residential uses, according to the data and analysis. About 138 acres, or 11%, of the City is devoted to existing commercial uses. The City contains no existing industrial or agricultural uses. About 57 acres, or 4.4%, of the City is in existing recreation/open space uses, and 260 acres, or 20%, is in existing public facility uses. Determining that, in 1987, 131 acres in the City were in commercial use, the land use analysis concludes that, based on a formula obtained from a publication of the Urban Land Institute, the City had 250% of the commercial acreage that it needed, based upon its population. Identification and Analysis of Dunes and Floodplain Concerning beaches and dunes, the data and analysis state in part: In the 1950s the beaches along the City of St. Petersburg Beach were narrow but there was a rather large accumulation of sand on the north end of the island, just south of Blind Pass. By the early 1970s this had changed somewhat. The beach width had increased over most of the island and erosion had occurred at the north end. The beach growth is primarily the result of nourishment projects but some may be due to erosion near the north end of the island and subsequent southerly littoral transport. The most recent nourishment along this barrier island was completed during the summer and fall of 1986. Historically, the barrier island in which St. Petersburg is located provided for the establishment of dune vegetation in the City's predevelopment days. Today, very little remains of what was once a unique ecosystem. Although the natural system has disappeared there has been a substantial effort put forth by the City to build a new dune system. Most natural sand dunes and vegetation had been eliminated and replaced by seawalls in the past. Today, the City encourages dune restoration and the construction of walkover structures. The beach area normally supports a community of salt-tolerant plants including sea oats, railroad vine and sea grapes. A few plants can still be found today scattered throughout the area. Protection or restoration of the valuable dune vegetation is necessary to maintain dune systems which in turn provide protection from high energy storm events add prevent property damage, while stabilizing the beach as well as promoting wildlife habitat areas. The City's active involvement in restoration programs has helped to alleviate many of the aforementioned problems. Coastal and Conservation Element (Coastal Element), pages 20-21. Elsewhere, the data and analysis add: Most natural sand dunes and vegetation have been eliminated by urban development. In many cases urban development can be designed to be compatible with the natural environment. However, the majority of urbanization that has occurred in the City has had a negative impact on the environment. Both natural and man-made destruction of natural dune systems and water courses has weakened the shoreline and caused erosion. Only scattered, isolated areas of marine vegetation can be found on the upland areas of the community. Due to their small size and location on private property, no attempt was made at calculating their acreage. * * * The Gulf dune systems and corresponding beach areas have also been designated as conservation areas. FLUE, page 11. Concerning the sandy beach, the data and analysis state: The entire sandy beach area is recognized as open space because it provides scenic amenities and recreation. Those portions of the beach which are privately owned (those lands lying above the mean high water line) have been recognized as municipal open space. The designation of privately owned beach lands as open space in the plan is a functional designation of how the land is used by the general public. FLUE, page 10. The data and analysis describe the protective function of the beach and dune system as follows: The beach and shoreline . . . is the City's largest and most important resource both economically and aesthetically . Management of this resource must receive a continuing effort and not be a periodic correction measure. As a result of the destruction of almost the entire dune line along the length of the Gulf beach, the potential for severe property damage during heavy or tropical storms has been significantly increased. The sand along this beach is an invaluable non-living resource which is subject to loss from wind and water, and man-made encroachments. FLUE, page 15. The data and analysis concede that the "need to preserve open space in the City . . . is critical." Recreation/Open Space Element, page 9. The relationship between open space and hazard mitigation is neatly summarized by the data and analysis as follows: Lands designated for open space and. recreational uses in high risk areas substantially reduce the amount of property at risk, leading to a reduction in future losses from hurricanes and storms. . . Coastal Element, page 56. As to the City's plan regarding recreation open space, the data and analysis state: "Currently, there are approximately 54.35 acres in [the City] dedicated to recreation open space. These areas should be protected from development and adequately maintained." Id. at page 16. The Recreation Facilities and Water-Dependent/Water-Related Facilities Map, which is part of the data and analysis included in the Recreation/Open Space Element, purportedly depicts the 57.35 acres of "recreation open space" in the City. Id. at page 9. This map, which is Map 11, inexplicably omits many parcels that the FLUM designates as Recreation/Open Space. Beginning about two blocks south of the Don Cesar Hotel, Map 11 shows the Preservation area Conservation Open Space, but fails to designate similarly any of the considerable amount of Recreation/Open Space that the FLUM depicts between the Preservation and various residential designations. In fact, except for the Preservation area seaward of the Coastal Construction Control Line and a couple of parcels designated as Conservation Open Space, Map 11 fails to depict as recreation or open space any of the land designated as Recreation/Open Space in the FLUM in the southern half of the City north of the Don Cesar Hotel. The land use analysis acknowledges that the entire City falls within the 100-year floodplain. FLUE, page 42. Recognizing that elevations range from sea level to 10 feet with about two-thirds of the City at or below an elevation of five feet, the analysis concedes that "the City is highly vulnerable to the dangers of flooding." FLUE, page 36. The 100-year floodplain is also known as the "Hurricane Vulnerability Zone." Coastal Element, page 45. Coastal High Hazard Area and Hurricanes The data and analysis identify the City's coastal high hazard area (CHHA) as "that portion of the City projected to receive the most severe damage from hurricanes and coastal storms." Coastal Element, page 44. The CHHA is the land seaward of the Coastal Construction Control Line set by the Florida Department of Natural Resources and within the V-Zone depicted in the Flood Insurance Rate Map (FIRM) used in the National Flood Insurance Program. The FIRM divides the 100-year flood zone into A-Zones and V-Zones. The V-Zones require stricter protections because they are not only vulnerable to the storm surge up to the 100-year flood level, but are also subject to the "devastating effects of velocity wave action." Coastal Element, page 47. The Coastal Construction Control Line "define[s] that portion of the beach-dune system which is subject to severe weather fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Coastal Element, page 44 (quoting Section 163.053(1), Florida Statutes.) The data and analysis report that existing land uses within the coastal high hazard area are "primarily recreation and open space and seawalls." Coastal Element, page 45. According to the data and analysis, the FLUE maintains or lowers the density of residential use (overall density to a maximum of 10 units per acre, unless development as a Planned Unit Development . . . in which a 15 unit per acre ceiling shall be established) occurring within the hurricane vulnerable section of the City. This reduction is consistent with the need to reduce the risk from hurricane evacuation and response. Id. The data and analysis devote considerable attention to hurricane evacuation times and shelters, partly in recognition that the Tampa Bay Region is "one of the most hurricane-vulnerable areas in the United States with the potential for large scale loss of life." Coastal Element, page 30. The data and analysis promote hurricane preparedness due to the location of the City on a barrier island and the large number of aged persons who may require added evacuation assistance. The City is in the "most hurricane-vulnerable area" and is divided into two evacuation zones. Coastal Element, page 33. Persons residing north of 46th Avenue will be directed to cross the Corey Causeway, and persons residing south of 46th Avenue will be directed to cross the Pinellas Bayway. The approaches to these bridges, as well as the Howard Franklin Bridge, which all City residents and most Pinellas County residents must use to reach I-4, are low-lying and will be susceptible to early flooding. Breaking down hurricane evacuation times into prelandfall hazards times and clearance times the data and analysis note that the Pinellas Bayway was one of two roadway links that, in a 1984 study, was identified as critical with 15 hours required for clearance. Two years later, another study suggested that the clearance time was reduced by four hours on a base run simulating an average evacuation level. Subsequent road improvements to the Pinellas Bayway reduced the clearance time by an additional two to nine hours. Analysis of hurricane shelters assumes a need of 10 square feet of space for emergency refuge, 20 square feet for overnight shelter, and 40 square feet for extended periods. The analysis notes various demographic factors that must be considered in calculating the amount of shelter space needed, including the "shadow evacuation" phenomenon in which nonvulnerable residents evacuate to public shelters. Deriving three rates of utilization of hurricane emergency shelters, the analysis concludes that, using the 10 square foot standard, secured public shelter Space will be exhausted if more than 14.5% of the evacuating population seeks public shelter. The assumed low rate of utilization is 15%. At the low rate, therefore, secondary shelter must be opened. With this space, Pinellas County can meet the projected demand in the event of the assumed medium rate of utilization. The analysis concedes that there is "considerable debate" over the adequacy of the 10 square foot standard. The rationale for adopting this standard is not so much a justification of the 10-foot standard as it is an acknowledgement that sufficient shelter simply does not exist: [C]onsidering the densely populated coastline in Pinellas County, the 20 square foot standard must be considered a long range objective with the ten square [foot standard] (medium demand) an intermediate standard. Given the projected demand from future growth in the City as well as the County coastal and mobile home populations, the Red Cross, County School Board, and the County Department of Civil Emergency Services will be seeking additional facilities to accommodate the future demand for public shelter in the event of a hurricanes. . . Coastal Element, page 37. The City has participated actively with the Federal Emergency Management Agency (FEMA) and Federal Insurance Administration in the National Flood Insurance Program. By letter received May 24, 1991, FEMA announced that the City's achievements in this regard earned its residents a five percent reduction on new or renewed flood insurance policies, as of October 1, 1991. Identification of Historic Resources The data and analysis disclose only two historic resources in the City. One is the Don Cesar Hotel, which was built in 1926 and is listed on the National Register for Historic National Landmarks. The second historic resource is the Pass-a- Grille Beach Church, which was built in 1913 and is now used as a private residence. The FLUE data and analysis discuss an area between 1st and 15th Avenues and Gulf and Pass-a-Grille Ways that contains about 125 buildings dating from the turn of the century. The City has applied to the federal government to include the 15- block area, which is in the southern end of the City, on the National Register of Historic Places. Goals, Objectives, and Policies FLUE Objective 1.1 is to maintain the "integrity and quality of life in existing residential neighborhoods through the maintenance of low to medium densities." FLUE Policy 1.1.5 is to use land development regulations to "[protect] existing residential areas . . . from the encroachment of incompatible activities . . . FLUE Objective 1.4 is for the City to "enhance and protect the City's existing character through redevelopment which ensures an orderly and aesthetic mixture of land uses." FLUE Policy 1.4.2 is for the City to use land development regulations to "encourage opportunities for the rehabilitation and/or revitalization of the existing residential structures" in order to "ensure the continued maintenance of [the City's] beach residential character." FLUE Objective 1.6 is: "As of the effective date of this Comprehensive Plan, development activities shall ensure the protection of historic and architecturally significant resources." FLUE Objective 1.7 is: "As of the effective date of this Comprehensive Plan, development activities shall ensure the protection of natural resources." Coastal Element Objective 2.2 is: "As of the effective date of this Comprehensive Plan, the City shall direct population concentrations away from the designated Coastal High Hazard Area." FLUE Policy 2.1.9 is for the City to "minimiz[e] development in high risk areas, such as the hurricane velocity zone, by full support of Coastal Construction Zone limitations." Coastal Element Objective 2.3 is: "As of the effective date of this Comprehensive Plan, the City shall maintain or reduce hurricane clearance times." Coastal Element Objective 2.4 is: "As of the effective date of this Comprehensive Plan the City shall reduce the risk of exposure of human life and . . . property to natural disasters through preparedness planning and implementation of hazard mitigation measures." The measure by which attainment of Objective 2.2 is evaluated is "[p]opulation density within the Coastal High Hazard Area." The measure by which attainment of Objective 2.3 is evaluated is "Hurricane Evacuation Clearance Times." The measures by which attainment of Objective 2.4 is evaluated are "[d]evelopment of City Hurricane Plan [and] [i]mplementation of Policies." Regional Plan Policy 16.5.1 of the Regional Policy Plan of the Tampa Bay Regional Planning Council (Regional Plan) states: Residential areas shall be located and designed to protect life and property from natural and man-made hazards such as flooding, excessive traffic, subsidence, noxious odors and noise. Regional Plan Policy 16.5.3 provides: Existing residential areas shall be protected from the encroachment of incompatible activities . Regional Plan Policy 16.6.1 states: Commercial land uses shall be located in a manner which ensures compatibility with the type and scale of surrounding land uses and where existing or programmed public facilities will not be overburdened. State Plan Goal 9 of the state plan is: to ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Policies 6 and 9 of Goal 9 are to: 6. Encourage land and water uses which are compatible with the protection of sensitive coastal resources. 9. Prohibit development and other activities which disturb coastal dune systems, and ensure and promote the restoration of coastal dune systems that are damaged. Section 187.201(9). Ultimate Findings of Fact Supporting Data and Analysis Petitioners have failed to establish, to the exclusion of fair debate, that the new designation given the six parcels is not supported by data and analysis in terms of densities and residential protection. The six parcels constitute 1.41 acres. The old designation allowed a density of ten units per net acre (10:1), which yields no more than 14 dwelling units. 8/ The new designation allows a density of 15 units per gross acre (15:1), which yields 21 permanent dwelling units, and a tourist density of 30 units per gross acre, which yields 42 transient or tourist dwelling units. The data and analysis support these increases in density and intensity outside of the CHHA, as are the six parcels in their entirety, and in the absence of urban sprawl considerations, which are highly unlikely due to the small, already-urbanized area involved. The original designation supported no more than 27 persons, and the new designation supports 105 persons. Even ignoring the reduced impact from actual tourist occupancy rates, the difference here is only 78 persons, which represents only 0.4% of the projected total population. The incompatibility questions are amply addressed by the establishment of 37th Avenue as a fair and practical boundary between less dense and intense uses to the south and more dense and intense uses to the north. Petitioners have failed to establish, to the exclusion of fair debate, that the new designation causes the plan, as amended, to fail to identify properly the coastal high hazard area (CHHA). To the contrary, the V-Zones shown in the FIRM, as well as the land seaward of the Coastal Control Line, are depicted within the CHHA in the vicinity of the six parcels and are properly designated as Preservation. Petitioners have failed to prove that any part of the six parcels falls within the CHHA established by the Plan or that the CHHA should be expanded. Petitioners have failed to establish, to the exclusion of fair debate, that the new designation is not supported by the analysis of existing hurricane evacuation times and hurricane shelter space for the reasons noted above in connection with population densities. Although the analysis itself suggests that the emergency-refuge standard selected for hurricane shelter space may be insufficient, the addition of another 78 persons, or 0.4% of the City's projected total population, will not have a measurable effect on the use of such space. Petitioners have failed to prove, to the exclusion of fair debate, that the new designation is not supported by the data and analysis identifying all historic resources. The data and analysis do not compel the designation of the Don Cesar Place subdivision, rather than merely the Don Cesar Hotel, as an historic resource. Moreover, the evidence does not establish that the new designation will adversely affect the neighborhood surrounding the Don Cesar Hotel. Although the five parcels south of the northernmost parcel were originally platted as part of the Don Cesar Place subdivision, the historic value is derived more from present conditions than the area platted decade ago. Thirty-Seventh Avenue serves as an effective boundary dividing land uses of differing intensity and density and thereby protecting the Don Cesar Hotel, as well as its neighborhood. Petitioners have failed to prove, to the exclusion of fair debate, that the new designation is not supported by data and analysis identifying all environmentally sensitive areas, such as dunes and the 100-year floodplain. The evidence fails to establish that the greater intensity and density allowed on the subject 1.41 acres will have a measurable effect upon the functions of the already-disturbed floodplain, which encompasses the entire City. Likewise, the evidence fails to establish that the existing dunes are incorrectly identified. It is at least fairly debatable that the existing dunes are located to the west of the subject parcels. However, Petitioners have proved to the exclusion of fair debate that the new designation accorded the 30-foot strip of the northernmost parcel is unsupported by data and analysis. The data and analysis, although sufficient to support increased density and intensity for land originally designated as Low- Medium Density Residential, offer no support whatsoever for increasing the density and intensity of land originally designated as Recreation/Open Space. The redesignation of the 30-foot strip defies the land use suitability analysis, which repeatedly emphasizes the importance of open space and the critical protective role of the beaches and dunes. Thus, the redesignation requires additional data and analysis, which the City failed to provide because it was unaware that the six parcels included any area designated Recreation/Open Space. Consistency with Miscellaneous Minimum Criteria Petitioners have failed to establish, to the exclusion of fair debate, that the plan fails to contain an objective directing densities away from known or predicted CHHA's. The plan amendment does not repeal Coastal Element Objective 2.2, which addresses this issue. Petitioners have failed to establish, to the exclusion of fair debate, that the plan fails to contain an objective mitigating natural The plan amendment does not repeal Coastal Element Objectives 2.3 and 2.4, which address this issue. Internal Consistency For the reasons set forth above, Petitioners have failed to establish, to the exclusion of fair debate, that the new designation conflicts with plan provisions protecting existing residential neighborhoods, protecting historic resources, reducing or maintaining hurricane evacuation times, engaging in hazard mitigation measures, and directing population concentrations away from the CHHA. The question is closer as to the consistency of the new designation with FLUE Objective 1.7, which requires "development activities [to] ensure the protection of natural resources." The redesignation of the 30-foot by 61-foot strip from Recreation/Open Space to Medium Density/Tourist Residential may impede the protection of natural resources, but Petitioners have not established such a fact to the exclusion of fair debate. Specifically, Petitioners failed to prove by the requisite standard that development of the strip would jeopardize the beach or dune system. Consistency with Regional Plan For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the new designation conflicts with Regional Plan Policies 16.5.3 and 16.6.1, which involve the compatibility of residential and commercial uses, and Policy 16.5.1, which involves the protection of residential areas from natural and man-made hazards. Consistency with State Plan For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the new designation conflicts with State Plan Goal 9 or Policies 6 and 9, which are to ensure that coastal area development does not endanger public safety or important natural resources.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that the City's plan amendment is not in compliance because the redesignation of the 30-foot westerly tip of the Lot 33, Bellvista Beach, from Recreation/Open Space to Medium Density/Tourist Residential is not supported by the data and analysis. ENTERED this 13th day of December, 1991, 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 Administrative Hearings this on of day of December, 1991.
The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue The issue to be determined in this proceeding is whether a small scale development amendment to the future land use map of the City of Jacksonville's 2030 Comprehensive Plan, adopted by Ordinance No. 2019-750-E on February 25, 2020 (the Ordinance), is "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and Standing Petitioner Livingston is a Florida resident, who lives at 1507 Alexandria Place North, Jacksonville, Florida 32207. Livingston appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Livingston is an affected person under section 163.3184(1)(a). Petitioner Gopal is a Florida resident, who lives at 1535 Alexandria Place North, Jacksonville, Florida 32207. Gopal appeared at the adoption hearings for the Ordinance, and submitted comments and objections on the record. Gopal is an affected person under section 163.3184(1)(a). Right Size is a Florida not-for-profit corporation that conducts business in the City, and its corporate address is 1507 Alexandria Place North, Jacksonville, Florida 32207. The specific purpose of Right Size, as stated in its Articles of Incorporation filed February 11, 2020, is to support, protect and preserve the historic character and beauty of San Marco, a historic residential neighborhood south of downtown Jacksonville and the St. Johns River. Officers of Right Size appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Right Size is an affected person under section 163.3184(1)(a). Respondent City is a municipal corporation of the state of Florida and is responsible for enacting and amending its comprehensive plan in accordance with Florida law. The City provided timely notice to the parties and the process followed the provisions of the City's Ordinance Code and part II of chapter 163. The Ordinance relates to 2.87 acres of property located at 2137 Hendricks Avenue and 2139 Thacker Avenue (Property). The Property is located within the City's jurisdiction. Intervenor Harbert is an Alabama limited liability company, registered to do business in Florida. Harbert is an applicant of record for the small scale development amendment and currently has the Property under a purchase contract pending the effective adoption of the Ordinance. Harbert is an affected person and intervenor under section 163.3187(5)(a). Intervenor South Jax is a Florida not-for-profit corporation and is the owner of record of the Property that is the subject of the Ordinance. South Jax is also an applicant of record for the small scale development amendment. South Jax is an affected person under section 163.3184(1)(a). The Property and Surrounding Parcels The Property occupies the majority of one block in the San Marco neighborhood of the City. It is bounded on the north by Alford Place, on the east by Mango Place, on the south by Mitchell Avenue, and on the west by Hendricks Avenue (State Road 13). Hendricks Avenue is classified as an arterial road. The Property is currently home to The South Jacksonville Presbyterian Church. The southern portion of the Property, comprising 1.89 acres, is currently designated Residential Professional Institutional (RPI) on the City's Future Land Use Map series (FLUM) of the Future Land Use Element (FLUE) in the 2030 Comprehensive Plan (Comp Plan). The northern portion of the Property, comprising 0.98 acres, is currently designated Community/General Commercial (CGC) on the FLUM. The southern portion of the Property is currently zoned Commercial Residential Office (CRO) on the City's zoning map. The northern portion of the Property is zoned Commercial Community/General-1 (CCG-1) on the City's zoning map. The FLUM shows that the Property is currently in the City's Urban Development Area (UDA), and abuts the boundary line of the City's Urban Priority Development Area (UPDA) to the north. The parcel to the north of the Property was the subject of a small scale FLUM amendment in 2014 (Ordinance 2014-130-E). It is known as East San Marco, currently has a Comp Plan FLUM designation of CGC, and is in the UPDA that permits development of up to 60 residential units per acre (ru/acre). Ordinance 2014-130-E for East San Marco included a FLUE text change, i.e., a site specific policy/text change under section 163.3187(1)(b). FLUE Policy 3.1.26 exempts East San Marco from specified UPDA characteristics. The East San Marco property was recently rezoned from Planned Unit Development (PUD) to PUD (Ordinance 2019-799-E) for a mixed-use project known as the East San Marco development. The PUD provides that the maximum height for commercial buildings is 50 feet not including non- habitable space, and 48 feet for multifamily units. Located south of the Property across Mitchell Avenue are parcels developed for single family residential use and currently designated as Low Density Residential (LDR) on the FLUM. These properties are zoned Residential Low Density-60 (RLD-60) on the City's zoning map. Located east of the Property across Mango Place are parcels developed with a mix of single family residential and office uses and designated as a mix of CGC and RPI on the FLUM. These properties have a mix of zoning including CCG-1, Residential Medium Density-A (RMD-A), and Commercial Office (CO). Located west of the Property at Hendricks Avenue/San Marco Boulevard are parcels developed with multifamily, restaurant and retail commercial uses and designated as a mix of Medium Density Residential (MDR) and CGC on the FLUM. These properties are zoned RMD-D and CCG-1. Intervenors intend to develop the Property with a mixed-use project that will include 133 multifamily residential units and a parking garage. The existing church sanctuary will remain in use at the northeast corner of Hendricks Avenue and Mitchell Avenue. The Ordinance On August 27, 2019, Intervenors applied for a small scale development amendment proposing to change the Property from RPI and CGC to CGC, and to extend the UPDA to include the Property. On the same date, Intervenors also filed a companion rezoning application seeking to change the zoning on the Property from CRO and CCG-1 to PUD. The rezoning application was processed concurrent with the small scale development amendment application. The City's professional planning staff collected and reviewed data and information related to the small scale development amendment application, the Property, and the surrounding areas. The staff also conducted a site visit. The staff further sought review by, and received input from, a number of different City and state agencies and organizations regarding the proposed Ordinance. On October 28, 2019, the City held a citizens' information meeting to discuss the proposed Ordinance. The meeting was attended by approximately nine residents. After reviewing and analyzing the data and information gathered, City professional planning staff determined that the Ordinance was consistent with the Comp Plan and furthers the goals, policies, and objectives of the Comp Plan. The determination was memorialized in a staff report recommending approval of the Ordinance. The staff report was prepared for consideration by the City's Planning Commission prior to its regular meeting on January 23, 2020. At its January 23, 2020, meeting, the Planning Commission held an approximately two and one-half hour hearing on both the Ordinance and the PUD. At the conclusion of the hearing, the Planning Commission recommended approval of the Ordinance by a unanimous vote. The staff report and the Planning Commission's recommendation were forwarded to the City Council's Land Use and Zoning (LUZ) Committee. The LUZ Committee held public hearings addressing the Ordinance on December 3, 2019; January 22, 2020; February 4, 2020; and February 19, 2020. Certain concerns were raised by citizens at public hearings both before and during the February 19, 2020, LUZ Committee meeting. In response, the LUZ Committee requested that Mr. Killingsworth draft a site specific policy/text amendment to adopt limitations on the number of residential units, the non-residential floor area permitted on the Property, and the maximum height of structures on the Property, with measurable criteria for determining the height of structures within the proposed use on the Property. During the February 19, 2020, public hearing, the LUZ Committee recommended addition of FLUE Policy 4.4.16, a site specific policy/text amendment, which states: Multi-family residential uses shall be limited to 133 units. Non-residential floor area shall be limited to 96,000 square feet (garage, all floors) and 25,000 +/- square feet (existing church, all floors). To ensure compatibility with adjacent uses and to protect neighborhood scale and character through transition zones, bulk, massing, and height restrictions, new building height shall be limited to the calculated weighted average, not to exceed 35 feet, across the length of the development from Alford Place to Mitchell Avenue as follows: A sum of the height to the predominant roof line (ridge or parapet wall) of that portion of a building multiplied by the length of that portion of a building divided by the overall length of that portion of a building divided by the overall length of permissible building within the minimum setback. After approximately six hours of testimony and discussion, the LUZ Committee unanimously recommended approval of the Ordinance with the site specific policy/text amendment. The City Council held public hearings to address the Ordinance on November 26, 2019; December 10, 2019; January 28, 2020; February 11, 2020; and February 25, 2020. After approximately five and a half hours of testimony and discussion, the City Council adopted the Ordinance on February 25, 2020, by a vote of 17 to one. There was significant citizen input regarding the Ordinance throughout the hearing process. This included emails and letters to City staff, to Planning Commissioners and City Council members, and submittal of verbal and written comments at the hearings. Petitioners' and Right Size's Objections Following their filing of the Petition and other stipulations mentioned above, Petitioners and Right Size jointly presented their case during the final hearing. They argued that the Ordinance was not "in compliance" because: (i) it created internal inconsistencies based upon Comp Plan Policies 1.1.20A, 1.1.20B, 1.1.21 and 1.1.22; (ii) it was not based on relevant and appropriate data and an analysis by the City; (iii) it did not react to data in an appropriate way and to the extent necessary indicated by the data available at the time of the adoption of the Ordinance; and (iv) subsection (c) of FLUE Policy 4.4.16 related to height failed to establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and land use regulations. Each argument is generally addressed below. However, the primary underlying premise of Petitioners' and Right Size's challenge was that the Ordinance would allow a density in excess of 40 ru/acre and permit a height in excess of 35 feet. Internal Consistency In the Amended Joint Pre-hearing Stipulation, as modified by the Notice of Narrowing Issues for Hearing, Petitioners and Right Size identified specific policies in the Comp Plan, which they assert rendered the Ordinance inconsistent with the Comp Plan. FLUE Policy 1.1.20A states that "[e]xtensions of the Development Areas will be noted in each land use amendment where an extension is needed or requested concurrent with a Future Land Use Map Amendment. In addition, plan amendments shall meet the requirements as set forth in Policy 1.1.21 and 1.1.22." The definitional section of the FLUE explains that the City is divided into five tiers of Development Areas which include the UPDA and the UDA. These areas are depicted on the City's FLUM series and control "the density, development characteristics, and other variables within plan categories." The first sentence of Policy 1.1.20A affords applicants the ability to request an extension of a development area concurrent with a land use amendment application. Consistent with the policy, the small scale development amendment application included a request for an extension of the UPDA. The request was submitted concurrent with the request to designate the Property as CGC on the FLUM. The adopted Ordinance makes note of the extension of the UPDA as required by Policy 1.1.20A. The second sentence of Policy 1.1.20A requires that when an amendment application includes a request to extend a development area, the City must ensure consistency with Policies 1.1.21 and 1.1.22. The City's analysis is reflected in the staff report, which finds that the amendment application meets Policies 1.1.20, 1.1.20A, and 1.1.20B. Petitioners and Right Size did not offer any testimony regarding consistency with Policy 1.1.20A. Their expert, Mr. Atkins, testified that he was familiar with Policy 1.1.20A, but did not explain how or why the Ordinance was internally inconsistent with Policy 1.1.20A. Instead, Mr. Atkins testified about data and analysis regarding Policy 1.1.21. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was inconsistent with Policy 1.1.20A. FLUE Policy 1.1.20B states: Expansion of the Development Areas shall result in development that would be compatible with its surroundings. When considering land areas to add to the Development Areas, after demonstrating that a need exists in accordance with Policy 1.1.21, inclusion of the following areas is discouraged; Preservation Project Lands Conservation Lands Agricultural Lands, except when development proposals include Master Planned Communities or developments within the Multi-Use Future Land Use Category, as defined in this element. The following areas are deemed generally appropriate for inclusion in Development Areas subject to conformance with Policy 1.1.21: Land contiguous with the Development Area and which would be a logical extension of an existing urban scale and/or has a functional relationship to development within the Development Area. Locations within one mile of a planned node with urban development characteristics. Locations within one-half mile of the existing or planned JTA RTS. Locations having projected surplus service capacity where necessary facilities and services can be readily extended. Public water and sewer service exists within one-half mile of the site. Large Scale Multi-Use developments and Master Planned Communities which are designed to provide for the internal capture of daily trips for work, shopping and recreational activities. Low density residential development at locations up to three miles from the inward boundary of the preservation project lands. Inward is measured from that part of the preservation project lands closest to the existing Suburban Area such that the preservation lands serves to separate suburban from rural. The development shall be a logical extension of residential growth, which furthers the intent of the Preservation Project to provide passive recreation and low intensity land use buffers around protected areas. Such sites should be located within one- half mile of existing water and sewer, or within JEA plans for expansion. After the City makes a determination that there is a need for the expansion of a Development Area pursuant to Policy 1.1.21, the City next looks to see if the property is discouraged under Policy 1.1.20B. The subject Property does not fall into one of the discouraged lands. The City's expert, Ms. Reed, explained that if the questions of need and discouraged lands are satisfactorily answered, the Policy then describes lands that are generally deemed appropriate for inclusion in a particular Development Area. The first question is whether the Property is contiguous to the UPDA and whether the extension is logical. The staff report notes that the Property is immediately adjacent to the UPDA to the north and that an extension of the boundary is logical because it permits an infill project. Ms. Reed and Ms. Haga testified that the proposed extension of the UPDA to include the Property is also logical because there is a functional relationship to the proposed mixed-use development to the north. The next question is whether the Property is within one mile of a planned node with urban development characteristics. Petitioners and Right Size stipulated that the Property is within a node which was confirmed by Mr. Atkins. The next criterion under Policy 1.1.20B is whether there are mass transit services available near the Property. The staff report notes that mass transit Routes 8 and 25 are available at the Property and this fact was confirmed by Ms. Reed. The fourth and fifth criteria under Policy 1.1.20B address whether there is sufficient water, sewer and other services available to serve the Property. The City requested information from various agencies and utilized the responses to analyze the impact of the Ordinance. The City sought confirmation from the Jacksonville Electric Authority, Transportation Planning, the Duval County School Board, Florida Department of Transportation, and the Concurrency and Mobility Management System Office to determine whether the systems serving the Property, i.e. water, sewer, schools, and roads, had available capacity to serve the site if the UPDA was expanded to include the Property. All the agencies consulted responded that there was sufficient capacity available. In addition, Ms. Reed testified that the Ordinance met Policy 1.1.20B because there is capacity for water and sewer, there is transit available, the area is very walkable, and there is access to a lot of neighborhood services nearby. Ms. Reed and Ms. Haga persuasively testified that the Ordinance met the criteria for land deemed appropriate for inclusion in the UPDA as set forth in Policy 1.1.20B. Petitioners and Right Size did not offer any evidence regarding the consistency of the Ordinance with Policy 1.1.20B and their expert did not offer any opinions or otherwise discuss consistency of the Ordinance with Policy 1.1.20B. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.20B. FLUE Policy 1.1.21 requires the City to analyze need for all land use map amendments. The Policy states: Future amendments to the Future Land Use Map series (FLUMs) shall include consideration of their potential to further the goal of meeting or exceeding the amount of land required to accommodate anticipated growth and the projected population of the area and to allow for the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business consistent with FLUE Policy 1.1.5. The projected growth needs and population projections must be based on relevant and appropriate data which is collected pursuant to a professionally acceptable methodology. In considering the growth needs and the allocation of land, the City shall also evaluate land use need based on the characteristics and land development pattern of localized areas. Land use need identifiers include but may not be limited to, proximity to compatible uses, development scale, site limitations, and the likelihood of furthering growth management and mobility goals. Petitioners and Right Size stipulated that they did not object to a density on the Property of 40 ru/acre or 114 total units, but object to the additional 19 units permitted by the Ordinance. Petitioners' and Right Size's expert, Mr. Atkins, testified that need to expand the UPDA to encompass the Property was not demonstrated, and that need for the "additional number of units" was not demonstrated. The City's experts, Ms. Reed and Mr. Killingsworth explained that Table L-20 of the FLUE identifies land use categories and their projected need at the end of the 2030 planning horizon. Mr. Killingsworth testified that Table L-20 demonstrates that at the end of the planning horizon the RPI land use will be at 119 percent of need, while the CGC land use will be at 84 percent of need. This indicates a need for additional CGC designated lands by 2030, as well as an over-abundance of RPI-designated lands. Since the Ordinance includes a request to change existing RPI-designated lands to CGC, it addresses both the need to increase CGC-designated lands and to decrease RPI-designated lands. Mr. Killingsworth testified that Table L-20 was prepared by the City to comply with section 163.3177(6), which requires all local governments to project need and to assure that there is market availability to respond to such need. The Table, along with the underlying data and analysis used to support it, was reviewed by the Florida Department of Community Affairs (n/k/a the Department of Economic Opportunity) and found to comply with state law. Mr. Killingsworth also testified that the City considered testimony by the San Marco Merchants Association, local residents, and the applicant presented during the hearings. The testimony demonstrates that the Ordinance would address current economic and housing needs in the area. Mr. Killingsworth opined that the testimony and Table L-20 demonstrate a need for the Ordinance to accommodate anticipated growth and the projected population of the area. With regard to the land use need identifiers of proximity, compatibility, and scale, Mr. Killingsworth testified that "compatibility" as defined in the FLUE "doesn't mean you have to have the same uses adjacent to each other, it doesn’t mean that you have to have the same density adjacent to each other." Instead it means that "those uses have to operate in conjunction with each other and there has to be [ ] some sense to the scale, the mass, and bulk of the structure." See Tr. at pg. 203, lines 11-17. Mr. Killingsworth also testified that although the City's analysis was that the Ordinance met the land use need identifiers, the limitations included in the site specific policy/text amendment were an additional way to ensure compatibility with adjacent uses with regard to use, scale, and height. The CGC portion of the Property is currently permitted to be developed up to 40 ru/acre. The site specific policy/text amendment limits the Property to a total of 133 residential units (or approximately 46 ru/acre), which the City Council determined is compatible, particularly given the fact that the East San Marco property directly north of the Property can be developed with up to 60 ru/acre. The Comp Plan FLUE does not establish height limitations for any of the land use categories, including CGC and RPI. Mr. Killingsworth testified that the s ite specific policy/text amendment provides for standards related to height that are otherwise not in the FLUE. The East San Marco project to the north has a height limit of 50 feet, and the low density residential neighborhood to the south has a height limit of 35 feet. Mr. Killingsworth opined that the limitation in the site specific policy/text amendment, restricting the height on the Property to an average of 35 feet, allows for an appropriate transition between the uses to the north and the uses to the south, thus ensuring compatibility. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.21. FLUE Policy 1.1.22 states: "Future development orders, development permits and plan amendments shall maintain compact and compatible land use patterns, maintain an increasingly efficient urban service delivery system and discourage urban sprawl as described in the Development Areas and the Plan Category Descriptions of the Operative Provisions." Petitioners' and Right Size's expert Mr. Atkins testified that he did not review Policy 1.1.22. However, in an abundance of caution, the City and Intervenors presented evidence to establish that the Ordinance was consistent with Policy 1.1.22. Mr. Killingsworth pointed to the definition of compact development from the FLUE, which includes the efficient use of land primarily by increasing intensity, density, and reducing surface parking. He testified that the Ordinance accomplished these criteria. Mr. Killingsworth testified that the height averaging in the site specific policy/text amendment assisted with ensuring compatibility, and that the proposed development's mix of commercial, residential, and institutional uses on a small site met the definition of compact development. Ms. Reed testified that the Property is in an area with full urban services, has access to transit, and fronts on an arterial roadway. Furthermore, it promotes a compact and compatible land use pattern through redevelopment and infill. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.22. Data and Analysis The parties agreed in the Amended Joint Pre-Hearing Stipulation that the facts remaining for adjudication with regard to "data and analysis" were exclusively related to subsection (c) of Policy 4.4.16, the site specific policy/text amendment that addressed only building height. However, Petitioners' and Right Size's expert Mr. Atkins did not discuss data and analysis specifically related to subsection (c) of Policy 4.4.16. Mr. Atkins testified about data and analysis related to the Ordinance generally. The City addressed the data and analysis supporting the Ordinance, and the City's response to that data and analysis. The City considered data from professionally accepted sources and applied an analysis based on established procedures set forth in the Comp Plan. The process of data collection began with the submittal of the application, which included a survey, a legal description and an owner's affidavit. Mr. Killingsworth testified that chapter 640 of the City's Ordinance Code sets out the process by which FLUM amendment applications are processed and reviewed by the planning staff. Section 650.404(b) requires that the City hold a Citizens Information Meeting that allows receipt of additional data from the affected community. Ms. Reed explained that all amendments are evaluated based upon standards and methodologies established in the FLUE for the assessment of data and analysis, which includes public facilities, school impacts, population, and development impacts. The City planning staff collected background data for the initial analysis of the Ordinance. The background section of the staff report goes through an analysis of the characteristics of the site, including the location, acreage, and surrounding uses; describes the site in general; identifies the Council district; identifies the Planning District; and notes if there are any applicable vision plans. The City planning staff also did research on applications and amendments that have occurred in proximity to the Property. The background information is part of the data and analysis that the City used to determine whether the Ordinance Amendment was consistent with the City's policies. In addition, FLUE Policy 1.2.16 requires the City to assume maximum development potential when analyzing the impacts of amendments to the FLUM unless there is a site-specific policy limiting density or intensity. In this instance, the staff report was completed prior to the addition of the site specific policy/text amendment to the Ordinance, which specifically limits the density and intensity permitted on the Property. The City's staff followed the guidelines of Policy 1.2.16 and utilized the maximum development potential for the Property in reviewing the application, i.e., 2.87 acres of CGC designated property in the UPDA. Ms. Reed testified that the site specific policy/text amendment "added parameters and limitations that were not there before, so it really lessened the impact based on what we analyzed versus what was ultimately approved." See Tr. at pg. 291, lines 8-17. Under Policy 1.2.16, the City developed a table entitled "Development Standards for Impact Assessment," which is used to collect and analyze specific impact data. The data gathered by the City for the table included the analyses provided by various advising agencies and entities. The data and analyses provided by the other agencies and entities are summarized in the table in the staff report. The table also includes a section where the City staff identifies and reviews other appropriate plans and studies. These plans and studies have not been adopted into the City's Comp Plan, but they are utilized as data and analysis when the planning staff reviews a FLUM amendment. The staff report identifies three plans applicable to the site, the Southeast Jacksonville Vision Plan, the North San Marco Action Plan, and the Strategic Regional Policy Plan. Ms. Reed explained that the Ordinance was consistent with the Southeast Jacksonville Vision Plan which provides for new development along Hendricks Avenue compatible with existing neighborhoods. The staff report notes that design details can be addressed in the companion PUD rezoning application. Likewise, the staff report concludes that the Ordinance is generally consistent with the features of the North San Marco Action Plan and that design details would be handled through the PUD review and implementation. Finally, Ms. Reed explained that the City found that the Ordinance would achieve the Strategic Regional Policy Plan's goals of improving quality-of-life with appropriate infill and redevelopment and by providing diverse housing options. Additional evidence and testimony offered by the applicant and the citizens during the Planning Commission, LUZ Committee, and City Council hearings was collected and analyzed by the City prior to final action on the amendment application. The additional data and information gathered during the many different hearings on the Ordinance resulted in the recommendation of the LUZ Committee to add the site specific policy/text amendment to the Ordinance. The site specific policy/text amendment limits the development potential on the Property. Mr. Killingsworth testified that the site specific policy/text amendment was a direct result of the City's analysis of input from the public related to intensity, density, and compatibility. Ms. Reed testified that "all of these things were considered together as a whole in order to come up with a recommendation, both in the staff report and final approval by Council as amended." Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not supported by data and analysis, and that the City's response to that data and analysis was not appropriate. Meaningful and Predictable Standards Section 163.3177(1) requires that a Comp Plan "establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations." Petitioners' and Right Size's expert, Mr. Atkins, opined that subsection (c) of the site specific policy/text amendment is "vague in its application and certainty in its outcome," in that "[t]here is no defined limit of what the height might be in violation of the requirements of section 163.3177(1)." Mr. Atkins acknowledged that the Comp Plan FLUE does not otherwise address height and that "[i]t all seems to be handled at the PUD or LDR level." This fact was confirmed by the City's expert, Mr. Killingsworth. Mr. Killingsworth explained that the objective of the site specific policy/text amendment, as a whole, is to establish a maximum development potential or otherwise restrict development on the Property consistent with Objective 4.4 of the FLUE. The density limitations, combined with the height limitation, restrict the development potential on the Property. Mr. Killingsworth testified that subsection (c) represents a policy statement by the City Council that height should be no more than an average of 35 feet, and it provides guidance as to how the height is to be calculated, which will ultimately be implemented in the LDRs and the PUD. Subsection (c) provides more specificity regarding height than would otherwise be achieved through a Comp Plan land use category without a site specific policy/text amendment. Mr. Killingsworth also testified that although the height limitation in subsection (c) may not dictate that the higher heights should be on the northern portion of the Property and transition to the lower heights on the southern portion of the Property, the PUD and the development of the Property will need to comply with other parts of the Comp Plan that require a transition between uses. Petitioners and Right Size did not prove beyond fair debate that the Ordinance does not guide future development decisions in a consistent manner, and does not establish meaningful and predictable standards for the use and development of land. Ultimate Findings Petitioners and Right Size did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order finding Ordinance No. 2019-750-E "in compliance," as defined by section 163.3184(1)(b). DONE AND ENTERED this 10th day of August, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 10th day of August, 2020. COPIES FURNISHED: Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-3007 (eServed) Frank D. Upchurch, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-9066 (eServed) Emily Gardinier Pierce, Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Courtney P. Gaver, Esquire Rogers Towers, P.A. 100 Whetstone Place, Suite 200 St. Augustine, Florida 32086 (eServed) T.R. Hainline Jr., Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Jason R. Teal, Esquire Office of General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Paul M. Harden, Esquire The Law Firm of Paul M. Harden, Esquire 501 Riverside Avenue, Suite 901 Jacksonville, Florida 32202 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Mohammad O. Jazil, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Craig D. Feiser, Esquire City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Trisha Bowles, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202-5721 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Findings Of Fact The Department of Environmental Regulation published notice of this land use hearing on March 21, 1981 in the Florida Times-Union newspaper. Notice was also published in the Florida Administrative Weekly. The Applicant, Jacksonville Electric Authority, (hereinafter JEA) posted notice of this hearing at the proposed site and the Department of Environmental Regulation (hereinafter DER) mailed notice of this hearing to the chief executives of the local and regional authorities with responsibility for zoning and land use planning whose jurisdiction includes the site. JEA is an electric utility and agency of the City of Jacksonville. Its application in this proceeding seeks site certification for the construction of a coal-fired electric generating plant and ancillary facilities, including a coal unloading facility and ancillary facilities, including a coal unloading facility and associated transmission lines, all of which are to be located in Duval County, Florida. The proposed site comprises approximately 1,636 acres located north of the St. Johns Rive in northern Duval County, immediately contiguous to JEA's existing Northside Generating Station. Ordinance 80-1290-700 of the City of Jacksonville was adopted specifically for the purpose of zoning the land which comprises the site for which certification is sought in a classification which allows the land use JEA intends by its application. The Ordinance zones the site as GU, Government Use, a zoning classification which does allow the use to which the land will be put by the Applicant should the site be certified. By the terms of this Ordinance, the classification GU shall apply to the subject land on the date that Fee Simple title to that land passes to the Jacksonville Electric Authority. To the extent that Fee Simple title to that land has not already passed to the Jacksonville Electric Authority, the subject land is currently zoned IH, Industrial Heavy. JEA is a governmental agency of the City of Jacksonville and possesses all powers of eminent domain necessary to acquire the land comprising the site. The foregoing zoning classification does not apply to any land located within Government Lot 2, Section 6, Township 1 South, Range 28 East. JEA has stated that it has not intent to develop any part of Government Lot 2 within the proposed site and it is therefore not considered part of the site. The site certification application includes a proposed coal unloading facility to be located on approximately 55 acres of Blount Island, contiguous to the St. Johns River, and owned by the Jacksonville Port Authority, another agency of the City of Jacksonville. That 55-acre parcel is currently zoned IW, Industrial Waterfront, and a coal unloading facility is consistent with the uses allowed within the IQ zoning classification. The site certification application includes certain directly associated transmission lines to connect the proposed generating facility to the existing transmission network. The preferred corridors for these directly associated transmission lines extend in the same general direction as the existing transmission lines from JEA's Northside Generating Station and will run to existing substations in all cases. Transmission lines, substations and similar installations are classified as "essential services" and as such are permitted in any zoning district within Duval County without any unique zoning to allow that land use. The use of the proposed site, including the coal handling facility and directly associated transmission lines, are all consistent with the elements of the 2005 Comprehensive Plan of the City of Jacksonville relating to land use. The plant site and the coal unloading facility appear on the land use plan map as "water related industrial" uses, and JEA has stated its intent to comply with the locational criteria for transmission lines found in the electric utility element of the City of Jacksonville 2005 Comprehensive Plan. The 2005 Comprehensive Plan has been approved by the State Department of Community Affairs and the Northeast Florida Regional Planning Council for consistency with state and regional land use planning requirements.
The Issue Whether the amendments to the Franklin County (County) Comprehensive Plan (Plan) adopted by Ordinance No. 2005-20 (Amendments) on April 5, 2005, are “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Background Franklin County (Franklin) is a coastal county located along the Gulf Coast of Florida's Panhandle. To the west is the Apalachicola River; it empties into a bay defined by barrier islands (St. Vincent, St. George, Dog), creating North America's second largest and most productive estuary. The eastern part of the County is St. James Island (SJI), separated from the mainland by the Crooked and Ochlockonee Rivers. Franklin's primary economic base is historically resource-based, including silviculture/timber, and since the 1930s primarily the fishing (seafood) industry. Tourism/retirement is an emerging industry especially on St. George Island, a noted resort destination. Retirees and vacationers come to enjoy the beautiful, pristine, relatively undeveloped, but still accessible waterfront stretches. Franklin's cities are Carrabelle, a 2.66 square mile fishing community about 50 percent developed and Apalachicola, a historic 4.81 square mile fishing community where about 90 percent of the land is still open for development. About 62- 70 percent of the County is federal or State land including the 1200-inmate State prison, Bald Point and St. George Island State Parks, Tate's Hell State Forest, and Apalachicola National Forest. FSU's Marine Lab is at Turkey Point. St. Joe owns over 55,000 acres in Franklin, mostly on SJI. Franklin has one of Florida's worst poverty rates. SJI's boundaries are the Crooked River and the Ochlockonee River and Bay on the north, Bald Point State Park on the east, Alligator Harbor Aquatic Preserve and the Gulf of Mexico on the south, and the City of Carrabelle on the east. SJI is mostly undeveloped except for: the Alligator Point area, including areas along County Road (CR) 370, areas along U.S. Highway (US) 98 including the unincorporated areas of St. Teresa and Lanark Village and adjacent to Carrabelle; and a few homes on Rio Vista Drive, just south of the Ochlockonee River. The natural systems on SJI are very diverse, and habitats range from xeric, well-drained uplands of pine and oak, to riverine swamps of cypress and hydric hardwoods, freshwater marshes, rivers and ponds, marine inter-tidal wetlands, bays, beaches, mudflats, seagrass meadows and open waters of the Gulf of Mexico. SJI is an ecologically significant and environmentally sensitive area that consistently scored in the 5 to 9 range (out of a high of 10) on the Florida Wildlife Commission's (FWC's) Integrated Wildlife Habitat Ranking System (IWHRS). SJI supports up to 388 species of birds, mammals, amphibians and reptiles, including a number of State-listed species. Of particular note is the presence of the black bear on SJI, which is a State-listed threatened species with substantial strategic habitats identified by FWC on SJI, particularly in the McIntyre, Brandy Creek, Cow Creek and Bear Creek corridors. The Gulf Sturgeon, a federally-listed threatened species, occurs in the Ochlockonee and Crooked Rivers and is subject to an ongoing U.S. Fish and Wildlife Service Study to determine the importance of the habitat to spawning and distribution of this prehistoric fish. SJI is surrounded by relatively clean (pristine) surface waters that have been designated as Outstanding Florida Waters (OFWs), including portions of Alligator Harbor and portions of the Ochlockonee Bay and River. A large part of Alligator Harbor is an Aquatic Preserve. Much of the Alligator Harbor and Ochlockonee Bay are designated as Class 2 Shellfish harvesting waters. SJI is home to Bald Point State Park, which provides a variety of wildlife habitat and recreational opportunities for nature observation and fishing. The eastern boundary of Tates Hell State Forest extends to Highway 319 on SJI and is separated from Bald Point State Park by approximately 7 miles of agricultural land (silviculture) through the center of SJI. Northeast Franklin, including SJI, is part of the Woodville Karst Plain, generally a sensitive karst area where some confining beds (especially in Wakulla County) are usually thin to absent, or breached. In unconfined karst hydrogeology, groundwater moves rapidly, but soil borings on SJI (Turkey Point) corroborate North Florida Water Management District maps which show a confining layer in eastern Franklin County varying in thickness from 15 to 20 feet. With such a confining layer, groundwater moves vertically at approximately 2 to 3 feet per year and laterally at approximately 100 feet per year in eastern Franklin County, including on SJI. Petitioners attempted to contradict evidence presented by St. Joe and prove that SJI has karst hydrogeology primarily on evidence of core samples taken in eastern Franklin County. These core samples were not explained by any expert testimony and did not prove the absence of any clay confining layer in eastern Franklin County. While unlikely, there may be places in eastern Franklin County where the confining layer thins or is absent or breached. In 1991 Franklin adopted a Plan for a long-term planning horizon of the year 2000. The Plan was found “in compliance,” at a time when approximately 27 percent of Franklin was in public ownership and Franklin was designated an Area of Critical State Concern (ASCS) largely due to the importance of the Apalachicola Bay Area and its natural resources. See §§ 380.05 and 380.0555, Fla. Stat. The 1991 Plan designated a critical shoreline district and impervious surface area limitations within 150 feet of shorelines and wetlands, which not only were determined by Franklin and the Governor and Cabinet to effectively protect County wetlands but also won an award from DCA for Outstanding Environmental Protection. The Administration Commission removed Franklin's ACSC designation in 1992, but the Plan was not changed prior to 1995. After 1995, and within the year 2000 planning horizon, there was one policy addition--FLUE Policy 2.2(k)-- and one policy amendment--to FLUE Policy 2.2(d). In approximately 1997, Franklin prepared an EAR on the 1991 Plan. It did not state a need for, or anticipate any, changes to the FLUE or FLUM or much else in the Plan. However, Franklin did not timely adopt EAR-based amendments to the 1991 Plan, and the planning horizon of Franklin's Plan remained the year 2000. Notwithstanding the 2000 planning horizon, there also were some amendments/additions/deletions to goals, objectives, and policies (GOPs) after 2000. Ordinance 2001-20 amended wetlands policies to reflect a change in State jurisdiction, amended FLUEP 1.2(d) and 3.1, deleted FLUEP 3.2 and 3.3, amended Coastal/Conservation Element (C/CE) Policy 1.5, and added FLUEP 1.6-1.9. Ordinance 2003-1 amended C/CEOs 1, 2, 3, and 7 and added Capital Improvements Element (CIE) Policies 4.4-4.6. Franklin also adopted two large-scale Plan amendments for mixed-use residential developments on SJI after 2000 without updating its Plan and planning horizon. In 2000 Franklin approved a FLUM amendment (FLUMA) from "Public Facilities" to "Mixed Use Residential" on 377.4 acres along US 98 at the intersection with Crooked River Road for a development of regional impact known as "St. James Bay." In 2002, Franklin transmitted a proposed FLUMA for 784 acres on Alligator Harbor from "Agriculture" to "Mixed-Use Residential," together with proposed FLUEP 11.11, for a St. Joe development called SummerCamp. During DCA's compliance review of the Summercamp amendments, the issue was raised whether the amendments should be found "in compliance" when Franklin's Plan was out-of-date and still planning for the year 2000. To resolve the situation, in 2003 Franklin adopted FLUEPs 11.12 and 11.13 along with the SummerCamp FLUMA. These amendments were found to be "in compliance." FLUEP 11.12 required Franklin to conduct a county- wide assessment of eight key substantive areas, prepare an overlay map and plan policies for SJI, and update its Plan not later than April 1, 2004, on the basis of the county-wide assessments, and to include requirements that all FLUMA on SJI be "consistent with the overlay map and policies." The eight key substantive areas were: Protection of natural resources including wetlands, floodplains, habitat for listed species, shorelines, sea grass beds, and economically valuable fishery resources, groundwater quality and estuarine water quality; Protection of cultural heritage; Promote economic development; Promotion of emergency management including the delineation of the coastal high hazard area, maintaining or reducing hurricane evacuation clearance times, creating shelter space, directing population concentrations away from known or predicted coastal high hazard areas, and implementing appropriate parts of the Local Mitigation Strategy; Adequate provision of public facilities and services including transportation, water supply, wastewater treatment, and facilities for access to water bodies; Provision of affordable housing, where appropriate; Inclusion of intensity standards; and A list of allowable uses. FLUEP 11.13 applied to any large-scale FLUMAs transmitted to DCA prior to the "effective date" of the Plan update pursuant to FLUEP 11.12, and required the FLUMA to "include an area-wide assessment covering the geographic area of the county where the FLUMA is located that addresses the same eight key substantive areas in FLUEP 11.12. Transmittal and Adoption Process The Plan Amendments at issue are the result of Franklin's endeavors to adopt EAR-based amendments and FLUMAs in accordance with FLUEPs 11.12 and 11.13. Franklin initially contracted the Department of Urban and Regional Planning of the Florida State University (FSU) for: a review and evaluation of the current Plan and EAR to recommend plan changes; to have a consensus building process with at least six community workshops; to evaluate population and employment; to perform technical data assembly and analysis; to recommend updated GOPs; and to facilitate consensus on a planning overlay for SJI. FSU produced updated data and analysis (D&A) in Geographic Information System (GIS) format and GOP revisions. FSU found no need for more residential land through 2020. FSU prepared a GIS-based "suitability analysis and county-wide map." Based upon St. Joe's concerns, FSU was told to delete it, and Franklin did not transmit the suitability analysis/map. In lieu of the FSU's suitability analysis/map, a short narrative was submitted. On June 16, 2004, Franklin filed a "transmittal package" with DCA: a "complete revised plan" with D&A and GOPs; a "supplementary notebook"; and 13 large FLUMs. Franklin proposed 8 FLUMAs: Eastpoint Sprayfield (45 acres); Breakaway Lodge/Marina (17.3 acres); Ft. Gadsden Creek (78.6 acres); Otter Slide Road (46.4 acres); McIntyre Rural Village (RV) (1,740 acres); Conservation Residential (ConRes) (6,532 acres); Carrabelle East Village (CEV) (201 acres); and Marina Village Center (MVC) (1,000 acres). DCA found Franklin's transmittal insufficient per 9J-11.009(1). On July 13, 2004, Franklin transmitted St. Joe's "site suitability for Proposed St. James Island FLUM amendments"; "traffic study"; "historical data on City of McIntyre"; "St. James Island Forestry Type Map"; and "Archaeological Reconnaissance of the St. James Island/Ochlockonee River Tract." On October 15, 2004, DCA issued an ORC per 9J- 11.010. The ORC made numerous (49) objections, including, but not limited to: the SJI overlay/policies, FLUMAs, wetlands, population projections/need, potable water, Coastal High Hazard Area (CHHA), land use categories/density and intensity standards, affordable housing, water supply planning, water dependent uses, no capital improvements schedule (CIS), and internal inconsistency. DCA coordinated with Franklin and St. Joe on the ORC response (ORCR), which was transmitted to DCA along with Ordinance 2005-20, adopted April 5, 2005, consisting of amended GOPs and FLUM series. The Ordinance replaced the 1991 Plan, as previously amended, and repealed all prior ordinances to the extent of conflict. The Ordinance adopted seven elements--FLUE; traffic circulation (TCE); housing (HE); infrastructure (IE); C/CE; recreation and open space (ROSE); and intergovernmental coordination (ICE)--and a FLUM series. FLUEPs 11.12 and 11.13 were deleted. There was no Capital Improvements Elements (CIE). In its new Plan, Franklin adopted five FLUMAs -- the Eastpoint Sprayfield and St. Joe's RV, ConRes, CEV, and MVC. The Eastpoint Sprayfield was dropped during DCA's compliance review, leaving the four St. Joe FLUMAs. During DCA's compliance review, many ORC objections were considered unresolved. Some issues were resolved on further review, but others remained, as reflected in a May 6, 2005, staff memo opining that the Plan Amendments were not "in compliance." This memo was written by DCA planners Susan Poplin and Jeff Bielling, who had extensively reviewed the County's transmittal and adoption packages. It was approved by their immediate supervisor, Charles Gauthier, a certified planner with extensive experience with Franklin, who left DCA not long after approving the memo. The memo was then presented to Valerie Hubbard, DCA's Director of the Division of Community Planning (and Gauthier's immediate supervisor), who considered the issues presented in the memo, along with additional information presented by the County, ultimately disagreed with the planners, and issued an "in compliance" Notice of Intent. No CIE A CIE is a mandatory element. See § 163.3177(3)(a); 9J-5.005(1)(c)2, 9J-5.0055(1)(b) and (2); 9J-5.016. The 1991 Plan had a CIE that was amended by ORD 2003-1 (CIEPs 4.4-4.6 were added). Franklin transmitted a proposed CIE to: change the "initial planning period" in CIEO 3.4 to 2004-2009; delete CIEPs 3.3 and 3.4; make a minor change to CIEP 2.1; and change CIEP 5.4 (LOS for potable water, principal arterial roads, and recreational facilities). DCA objected to the lack of a five- year CIS, which also is mandatory. In the ORCR, Franklin explained the absence of the CIS by maintaining that there were no capital improvements needed for the next five years. The adopted 2020 Plan has no CIS, which DCA found "in compliance" based on Franklin's explanation. However, it also has no CIE, which was not obvious or apparent to DCA in its compliance review because the CIE was not submitted in strike- through/underline format, as required by 9J-11. In addition, several adopted elements cross-reference to the CIE. Franklin contends that it did not adopt a CIE because there were no capital improvements to be shown on a five-year CIS and because of its understanding that many items, including building or paving roads, are not capital improvements. However, it appears Franklin may have inadvertently neglected to adopt the CIE as transmitted. The deletion was not discussed at the adoption hearing. When the deletion of the CIE came to the attention of DCA after the May 6, 2005, staff memo, DCA chose to accept Franklin's explanations as to why the CIE was deleted and why the 2020 Plan was "in compliance" without a CIE. But the evidence does not support these explanations. Notwithstanding Franklin's explanations, Franklin Ordinance 04-45 authorized a referendum on a local tourist development tax, which was approved by the voters on November 2, 2004, to provide for development of a beach park and for other recreational facility infrastructure. Franklin estimated $718,896 in tax receipts for FY 2005-06. The other parties contend that the expenditure of these capital improvement funds need not be addressed in the CIS or CIE in part because they are for the benefit of tourists, not residents. But it is clear from the evidence that both will benefit, and there does not appear to be any exception for capital improvements designed to benefit both. The other parties also point out, correctly, that only capital improvements needed to meet concurrency requirements need to be on the CIS. Besides the possible use of tourist development funds, Franklin's 2005-06 $34,036,313 annual budget includes a number of other items that appear to be capital improvement items: "capital outlay - land $100,000; capital outlay - imp. other than buildings $300,000; walk path Tillie Miller Park $10,000; Carrabelle Rec Park/FRDAP grant $200,000; Rec. Fac. Improvements other than buildings $25,000; Bald Pt. land $50,000; Bald Pt. improvements other than buildings $495,697; road paving-improvements $1,200,000; paving project-CR 30 $1,951,379; boating-improvements other than buildings $94,877; Lanark Village Drainage Improvement $92,059; Airport Fund capital outlay- improvements other than buildings $1,407,069." In addition, Franklin's CR 370 along Alligator Point has repeatedly washed out from storms, and current estimated repair costs are $2.1 million, with $1 million budgeted and FEMA matching funds anticipated. The other parties presented the direct testimony of several witnesses that none of the expenditures Franklin is planning to make in the next few years, even if capital expenditures, need to be on a CIS. Petitioners presented no direct testimony to the contrary. Based on the evidence, it was not proven that beyond fair debate that any of these expenditures were required to be included in a CIS. CIE requirements include GOPs. 9J-5.016(3). Franklin Planner Pierce and St. Joe witness Beck testified that CIE requirements can be found in other elements of the 2020 Plan. However, the 2020 Plan does not contain an explanation of any such combination of elements as required by 9J-5.005(1)(b). In addition, based upon the evidence, while some CIE requirements can be found in other elements, it is beyond fair debate that the other elements of the 2020 Plan do not contain all of the required CIE GOPs. One CIE requirement is to have a policy setting public facilities level of service standards (LOSS), including one for recreational facilities. See § 163.3177(3)(a)3; 9J- 5.016(3)(c)4. See also 9J-5.0055(1)(b) and (2). The 2020 Plan lacks LOSS for recreational facilities. ROSEP 1.2 purports to adopt LOSS "as provided in Exhibit 7-2 of this element," but Franklin did not adopt Exhibit 7-2. See 9J- 5.005(2)(g). Franklin's transmittal D&A proposed updated recreational LOSS using population forecasts for "projected need for 2010." Exhibit 7-2 in Franklin's June 14, 2004, transmittal was based on those 2010 forecasts. There was no projection of need for either five years or to 2020. Franklin's transmittal D&A showed a deficit for bike trails, fresh/saltwater fishing, football/soccer, tennis, and swimming pools through 2010. Franklin Planner Pierce testified Exhibit 7-2 was not adopted because it was inaccurate. He testified that it was based on total population, including incorporated areas, and failed to count some swimming pools and tennis courts. But he did not supply the corrected information, and accurate D&A was not submitted for review. Pierce admitted that no data in evidence showed that Franklin can meet recreational needs through 2020, or that current recreational LOSS are being met. Franklin operates Class 1 and Class 3 landfills located on the east side of CR 65, north of US 98. D&A indicated that there are two-three more years of Class 1 landfill capacity at 2004 collection levels, with household trash being trucked to Bay County under a contract valid until 2007. The Class 3 landfill takes construction debris for a fee. Franklin did not assess Class 1 disposal requirements after the 2007 contract expiration, or Class 3 disposal requirements, and the 2020 Plan is not supported by an assessment of future solid waste disposal requirements through either a five-year or 2020 time frame based upon the projected population. Franklin may need to expand either, or both, of its landfills during the 2010 and 2020 time frames, but there is no discussion of such improvements. DCA, Franklin, and St. Joe concede that Franklin's 2020 Plan without a CIE is deficient, but they characterize the deficiency as merely "technical" and "inconsequential" because: "there are no deficiencies for which to plan, and many Plan provisions ensure capital improvements implementation, monitoring and evaluation, and concurrency management"; and Franklin "has demonstrated that it can adopt a CIS and CIE in the future, if needed." But it is beyond fair debate that Franklin's 2020 Plan, as it stands now without a CIE, is not in compliance because it is inconsistent with Section 163.3177(3)(a), 9J-5.0055(1)(b) and (2), and 9J- 5.016(3)(c)4. Combination Coastal and Conservation Elements Petitioners also contend that the 2020 Plan combines the coastal and conservation elements but does not contain an explanation of such combination, as required by 9J- 5.005(1)(b). In a small jurisdiction like Franklin County, with the vast majority of its land in public ownership, combination of these two elements is appropriate because most of the County’s developable acreage is coastal, and conservation measures must necessarily focus on coastal areas. This combination was previously found in compliance in 1991. No expert witness for Petitioners testified that the combination of these elements is inconsistent with 9J- 5.005(1)(b), or that the 2020 Plan is not "in compliance" as a result. To the contrary, several experts for the other parties testified that the 2020 Plan is "in compliance." Two Planning Periods/Timeframes Petitioners contend that it is beyond fair debate that the 2020 Plan does not include a planning period covering at least the first five-year period after adoption, as required by Section 163.3177(5)(a). But the Plan contains a number of objectives and policies in the HE, IE, and C/CE that establish a five-year planning period for achieving certain objectives. See HEO 4; IEO 2.16; C/CEOs 5.9, 8.3, 9, 14.9, 15, 15.9, 18, and 21. Petitioners seem to contend that the 2020 Plan fails to include the two required time frames--one at least five years and one at least ten years--because Franklin's analyses included disparate time frames and lacked a uniform 2020 analysis. But there does not appear to be a prohibition against analyzing more time frames than just the long-term planning horizon. It was not proven beyond fair debate that the 2020 Plan does not cover at least two planning periods, one for at least the first five years and another for at least ten years after adoption. Affordable Housing Petitioners contend: "To the extent that FLUE Policies 11.12 and 11.13 required an assessment of affordable housing on SJI, there is no data or analysis to support a finding that an affordable housing assessment was prepared." Pam Ashley PRO, ¶ 42. But FLUEPs 11.12 and 11.13 were deleted by the Plan amendments at issue. Besides, the county-wide assessment would include the area of SJI. Adopted HEO 2 provides: "There will be sites available for 473 units of housing for low and moderate families by the year 2020 2000." (Underlining/strikethrough in original.) As stated, the number in the objective clearly is incorrect. Actually, D&A showed a need for 473 units in addition to the 1803 units identified in the 1991 Plan. Adopted HEO 3 makes the same kind of error for mobile homes: "There will be adequate sites for 244 mobile homes in the County by the year 2020 2000." (Underlining/strikethrough in original.) It is beyond fair debate that these objectives, as stated, are not supported by D&A. The plan should be corrected to comport with D&A. CHHA Designation Section 163.3178(2)(h) defines the CHHA to mean the Category (Cat) 1 hurricane evacuation zone. See also Rule 9J- 5.003(17) (defining the CHHA to mean the evacuation zone for a Cat 1 hurricane as established in the applicable regional hurricane study). The Apalachee Regional Transportation Analysis Final Report is the most recent applicable regional hurricane evacuation study (HES) per 9J-5.003(17). According to the HES, Franklin's Cat 1 evacuation zone boundary "would roughly coincide with US 98 throughout the County. The HES map of Franklin's evacuation zone, which is in GIS format, depicts one minor exception south of US 98, east of CR 30A (which is west of Apalachicola), and another southeast of US 98 (and southwest of CR 370) in the middle of SJI. Both exceptions are inland--i.e., they do not extend seaward to the coast (St. Vincent Sound in the case of the first exception, and Alligator Harbor in the case of the second exception). The adopted FLUM series includes a CHHA map that notes: "The Coastal High Hazard Area shall be designated . . . as all areas seaward of Highway 98 or County Road 30A with the exception of areas depicted as 1 and 2 on this map. The Coastal High Hazard Area for unincorporated Franklin County is based on the Apalachee Regional Transportation Analysis Final Report." The Areas 1 and 2 exceptions on Franklin's CHHA map purport to be the same two exceptions in the HES map. But unlike the HES map, the two exceptions depicted on Franklin's CHHA map extend all the way to the coast. In addition, they are larger than the exceptions depicted on the HES map, with Franklin's Area 2 exception on SJI clearly much larger. DCA, Franklin, and St. Joe concede that Franklin's CHHA map does not correspond to the HES Cat 1 evacuation zone for Franklin. However, they characterize the differences as "slight" and attributable to the "representational nature" of the HES map. To the contrary, the HES map, which is in GIS format, fixes precise boundaries that clearly are not matched by Franklin's map in the cases of Areas 1 and 2. Besides, 9J- 5 does not permit Franklin's CHHA to take liberties with the applicable regional study's evacuation zone based on alleged generalized depictions or representations in the regional map. A witness for St. Joe testified that evacuation zones are related to clearly identifiable landmarks and physical features, like US 98, for easier and clearer communication to the public. But that clearly is not always the case, as can be seen from the various HES maps. In any event, there was no evidence that such considerations could justify Franklin's departure from the HES Cat 1 evacuation zone boundaries in this case, and such an argument is not made in the Joint PRO filed by DCA, Franklin, and St. Joe. It is beyond fair debate that the 2020 Plan's CHHA designation in the CHHA map does not correspond to the evacuation zone for a Cat 1 hurricane as established in the applicable regional hurricane study, as required by Section 163.3178(2)(h) and 9J- 5.003(17). Petitioners also point out that HES was based, in part, upon the National Hurricane Center's Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model in the 1994 Florida Hurricane Surge Atlas-Franklin County, and that HES included areas of Wakulla County north of SJI in the SLOSH Cat 1 area in Wakulla's Cat 1 evacuation zones, but excluded such areas south of the Ochlockonee Bay and River from Franklin's Cat 1 evacuation zone. They seem to contend that the HES Cat 1 evacuation zone for Franklin is not as large as it should be. But the evidence implied that the difference in treatment of these areas by HES was the result of lobbying by Wakulla's director of emergency management for their inclusion. In any event, as stated, Section 163.3178(2)(h) and 9J-5.003(17) accept the Cat 1 evacuation zone delineated by the applicable regional study, regardless of possible error. Inventory/Analysis/GOP for Natural Disaster Planning Petitioners question the adequacy of Franklin's inventory/analysis and GOPs for natural disaster planning under 9J-5.012. Besides citing some D&A, Petitioners make several major arguments: first, the CHHA may not plan to mitigate flooding damage; second, Franklin did not plan for projected populations; third, the 2020 Plan makes no provision for capital improvements to build shelters despite adding C/CEPs 14.8 and 14.12 regarding shelters inside and outside of county; fourth, parts of the evacuation routes out of Franklin are subject to storm surge and flooding; fifth, Franklin's planning ends at the county line; and, sixth, special needs persons were not considered. 45. 9J-5.012(2)(e)1. provides: (e) The following natural disaster planning concerns shall be inventoried or analyzed: 1. Hurricane evacuation planning based on the hurricane evacuation plan contained in the local peacetime emergency plan shall be analyzed and shall consider the hurricane vulnerability zone, the number of persons requiring evacuation, the number of persons requiring public hurricane shelter, the number of hurricane shelter spaces available, evacuation routes, transportation and hazard constraints on the evacuation routes, and evacuation times. The projected impact of the anticipated population density proposed in the future land use element and any special needs of the elderly, handicapped, hospitalized, or other special needs of the existing and anticipated populations on the above items shall be estimated. The analysis shall also consider measures that the local government could adopt to maintain or reduce hurricane evacuation times. These inventories and/or analyses are found in the C/CE, the regional hurricane evacuation study, the Comprehensive Emergency Management Plan (CEMP), and the Local Mitigation Strategy (LMS). The Plan incorporates the hazard mitigation appendix of the CEMP through C/CEP 15.7. Additionally, in C/CEPs 14.1, 14.6, the 2020 Plan recognizes appropriate parts of the LMS, such as the need to maintain and improve evacuation routes throughout the County. 9J-5.012(3) sets out requirements for coastal management GOPs, including the requirement in (a) for "one or more goal statements which establish the long term end toward which regulatory and management efforts are directed" to "restrict development activities that would damage or destroy coastal resources, and protect human life and limit public expenditures in areas subject to destruction by natural disasters"; and the requirement in (b) for "one or more specific objectives for each goal statement which . . . 7. [m]aintain or reduce hurricane evacuation times " To support their contention that the CHHA may not plan to mitigate flooding damage, Petitioners cite a statement in the CEMP that flooding is the greatest potential hurricane damage. The also cite D&A in Franklin's 6/2004 transmittal package that evaluated areas subject to coastal flooding and observed: Areas subject to coastal flooding resulting from storm surges are shown in Map 6.4. The map portrays substantial risk from flooding outside the Category 1 storm zone By limiting the CHHA to the Category 1 storm surge zone the county may not be planning to mitigate the substantial flooding risks posed by storm surges and Category 2 and 3 storms . . . . However, there was no evidence that Franklin, DCA, or anyone else ever came to the conclusion that the CHHA was inadequate for that reason. In any event, as stated in the discussion on the CHHA, state law defines the CHHA to coincide with the Cat 1 evacuation zone as drawn by the applicable regional hurricane evacuation study. See Finding 38, supra. Petitioners base their contention that Franklin did not plan for projected populations on a reference in the LMS to Franklin's future land uses as of 2000, instead of its future land uses in 2020. But is clear that Franklin also considered the four SJI FLUMAs with their future land uses for 2020. As to shelters, Petitioners essentially argue that the CIS is inadequate. But C/CEPs 14.8 and 14.12 require assessments of shelter availability inside and outside Franklin, pursuit of agreements with neighboring counties to provide out-of-county shelters, and exploration of the possibility of locating some shelters in Franklin (even though the entire county will be evacuated in the event of a Cat 2-5 storm). There was no D&A as to a need for capital funding within the next five years for inclusion in a CIS. Regarding the impact of storm surge and flooding on evacuation routes out of Franklin, there was evidence that US 319 is subject to flooding at the Ochlocknee River during a storm, that US 98 is subject to storm surge and flooding at the Ochlocknee Bay, and that the four SJI FLUMAs are expected to move the critical link in Franklin's evacuation plan from US 98 near Lanark Village to US 98 at the Ochlocknee Bay. But there was no evidence that Franklin failed to consider the impact of storm surge and flooding on evacuation routes out of Franklin. To the contrary, the evidence was clear that Franklin is planning for the complete evacuation of the county to take place before those routes are impacted by storm surge or flooding. The USACE guidance for HES states in part: Each jurisdiction's existing hurricane evacuation routes are evaluated. In choosing roadways for the hurricane evacuation network care should be taken to designate only those roads that are not expected to flood from rainfall or storm surge while evacuation is in process. There was no evidence that HES did not follow this guidance. Under C/CEO 14 of the 1991 Plan, reasonable hurricane evacuation standards of 16 hours for Cat 1 and 24 hours for Cat 2-5 storm events were adopted. The 2020 Plan amends C/CEO 14 to read: Hurricane Evacuation - The County shall conduct its hurricane evacuation procedures to ensure that Countywide evacuation clearance times do not exceed 16 24 hours for Category 1 & 2 storms and 24 30 hours for Category 2, 3, 4 and 5 storms. 9J5-012(3)(b)(7). (Underlining/strikethrough in original.) Actual hurricane evacuation times are based on models that estimate the amount of time it would actually take to evacuate the County. These models include consideration of behavioral tendencies and tourist occupancies. Without the SJI FLUMAs, actual hurricane evacuation clearance times for the entire County are 4 ½ hours for a Cat 1 evacuation and 8 ¼ hours for Cat 2–5 evacuations, with high tourist occupancy and a slow public response. With the additional populations from the SJI FLUMAs (none of which fall within the CHHA), actual clearance times would increase slightly to five hours for Cat 1 and 10 ½ hours for Cat 2 – 5 evacuations. However, today’s actual evacuation times of 4 ½ hours and 8 ¼ hours can be maintained or reduced with the use of reasonable mitigation measures found in C/CEP 14.1--namely, encouraging the use of SR 65 and SR 67 as alternatives to US 98 and SR 319. Petitioners contend that Franklin's hurricane evacuation standards actually have been lowered as a result of the amendment to C/CEO 14 by the addition of the word "clearance." But there was no evidence that the 1991 Plan's C/CEO 14 actually planned for something other than clearance from Franklin. Regardless whether evacuation plans changed by addition of the word "clearance," Petitioners question whether it is wise to plan only to clear Franklin before the arrival of tropical storm conditions when evacuees still must pass through Cat 1 evacuation zones in other counties, e.g., Wakulla, before reaching a place of safety. As they point out, the HES envisions the need for a regional evacuation in the event of a major hurricane with the majority of evacuees in the region evacuating to Leon County, and states: "For the near term, it may be most appropriate for the coastal counties, especially Franklin and Wakulla, to use the clearance times for Leon County rather than using their own specific figures." Moreover, HES stated: Until the roadway improvements are completed on the Crawfordville Highway and Capital Circle, the evacuation clearance times calculated for Franklin, Wakulla and Leon Counties can exceed one full day of heavy evacuation traffic movement for a worst-case storm if all those who wish to leave the area are to be accommodated. This timeframe easily extends beyond the maximum amount of warning and preparation time provided by the National Hurricane Center under a Hurricane Warning. This D&A in and of itself does not prohibit Franklin from using times to clear the county in its evacuation planning. But use of clearance times would require regional evacuation needs to be coordinated among the various counties and incorporated in the CEMP and LMS. There was no evidence in this case that such coordination has not occurred or that the various counties are not planning for evacuees to pass through all evacuation zones and reach places of safety soon enough to get out of harm's way. Petitioners also argue that special needs persons have not been considered. This argument is based on the supposed testimony of St. Joe's witness, Collins, that there is no provision in the 2020 Plan for the evacuation of persons with special needs. Actually, Collins' testimony was that there is a Plan provision that "definitely affects the evacuation" of persons with special needs, and not just indirectly, in that adult living facilities within the CHHA are prohibited. He also testified that the CEMP deals with those issues. Mr. Gauthier, the former DCA chief of comprehensive planning was subpoenaed by Petitioners and explained why, in his opinion, the 2020 Plan is not "in compliance" because of inconsistency with 9J-5.012. He based his opinion on the incorrect CHHA designation, failure to direct population concentrations away from the CHHA, and C/CEO 14's establishment of a clearance time standard greater than actual clearance times. While the CHHA may not be designated accurately, assuming a correct definition, there was at least fair debate as to whether the 2020 plan directs population concentrations away from the CHHA. As indicated, none of the FLUMAs are in the CHHA, either as designated or as it should have been designated. Elsewhere, both the 1991 and the 2020 Plans limited residential density in the CHHA to a maximum of one DU/acre, which arguably does not constitute a population "concentration." For the reasons described in the preceding findings, the evidence in this record did not prove beyond fair debate that Franklin's 2020 Plan is inconsistent with 9J- 5.012 and not "in compliance." SJI FLUMAs and FLUEPs RV consists of 1,704 acres on the 2020 FLUM and FLUEP 2.2(l). It is presently designated agriculture (with residential development allowed at 1 DU/40 acres), and parts are in silviculture. FLUEP 2.2(l) is designed as a rural village that focuses on the historical heritage and natural surroundings of the Crooked River, with the objective being to create a rural village center in proximity to the river and a supporting rural community of river cottages and single-family (SF) lots. FLUEP 2.2(l) lists seven allowable uses, including residential, some commercial, and recreational uses. Non- residential maximum intensity is expressed in terms of FAR and set at .20; maximum overall gross residential density is 1 DU/5 gross acres. FLUEP 2.25 does not apply. RV can be all residential. Franklin Planner Pierce testified that, at most, 340 acres can be used for non-residential uses. He calculated this by multiplying the total acreage by the FAR. He also testified that, if 340 acres are non-residential, a maximum of 272 residential DUs could be developed on the remaining 1,363 acres. If all 1704 acres of RV are residential, the maximum residential use would be 340 DUs. Clustering is allowed but not required. At least 25 percent (426 acres) must be in "common open space" (including roads and other infrastructure); 50 percent "common open space" is required for cluster developments. Central water and wastewater is mandatory, and SMSs must meet OFW standards. As transmitted, the ConRes FLUMA was 6,531 acres to the east of RV and along the Ochlocknee River and Bay. As adopted, it is 2,500 acres. The parts of the transmitted version adjacent to RV and along the river and Bear Creek were eliminated in the adopted version. The land is presently "Agriculture" (with residential development allowed at 1 DU/40 acres); the land is used for silviculture. As described in FLUEP 2.2(m), ConRes is generally intended for large, private tracts of land that are appropriate for low density residential development and the protection of natural and cultural resources. A stated important objective is to allow for low density residential development that accentuates and celebrates the natural environment and is designed to fit into the natural setting instead of altering the natural setting to fit the design of the development. It allows detached SF residential use, passive and active recreational uses, related infrastructure, silviculture, and accessory use for residents and guests, and other similar or compatible uses. Free- standing nonresidential or commercial uses intended to serve non-residents are not permitted. Neither "active" nor "passive" recreational uses are defined in FLUEP 2.2(m). "Timeshare" or "vacation rentals" may be allowed. Maximum gross density is 1 DU/5 gross acres, and maximum overall impervious surface coverage cannot exceed 15 percent of the land area. No FAR is included or, arguably, required because ConRes is primarily a residential concept. Septic tanks are allowed but may not be located within 500 feet of the Ochlocknee River, Ochlocknee Bay, or Bear Creek. "Aerobic systems" to provide a higher level of treatment apparently are not required, as they are on St. George Island and Alligator Point. IEP 1.2 states: "The County shall adopt a policy that mandates aerobic septic systems on a county-wide basis." Apparently, this has not yet occurred. SMSs must meet OFW standards. MVC is 1,000 acres presently "Agriculture" on the FLUM (with residential development allowed at 1 DU/40 acres); the land is used for silviculture. The land is to the immediate east of ConRes along the Ochlocknee Bay and west of the US 98 bridge over the bay. MVC is described in FLUEP 2.2(n). The intent is to create a southern coastal fishing village focused on a marina, which is a required use. In addition to the marina, the village may contain a mix of related activities including retail, office, hotel, restaurant, entertainment, and residential uses. "Public and private utilities" are allowed but are not defined; they probably contemplate those needed for MVC itself. Clustering is not required. Residential use may not be required, but it certainly is expected of a "southern coastal fishing village." Residential use may be any combination of SF, multi-family (MF), condominiums, private residence clubs, time shares, and other forms of fractional ownership. The maximum FAR for non- residential use is .30. The maximum residential density is "2 DU/gross acres", maximum ISR (impervious surface ratio) is .80, minimum "common open space" is .25, and other applicable Franklin zoning code provisions. FLUEP 2.25 applies, and at least three land uses are required, "none of which may be less than 10 percent of the total land area." Central water and wastewater is required. SMSs must meet OFW standards. CEV in the 2020 Plan FLUM and FLUEP 2.2(o) addresses 200 acres presently designated Agriculture (allowing 1 DU/40 acres residential use); the land is in silviculture. The CEV FLUMA represents the first phase of development. CEV is generally intended to create a self-sustaining community with a mixture of functionally integrated land uses anchored by a village center. It is to complement the existing community of Carrabelle and create places to live, work and shop in the context of promoting moderately priced housing and economic development opportunities. Allowable uses are limited to SF and MF residential, retail commercial, service-oriented commercial, office, business and industrial park, passive and active recreation, schools and other civic facilities, public and private utilities, and houses of worship. There is no definition limiting the type of industrial use allowed, but Franklin Planner Pierce interpreted FLUEP 2.2(o) to mean industry like a truss factory or a cement batching plant, not heavier industry. Performance standards are 1-3 DU per gross acre gross residential density, maximum non-residential intensity of .25 FAR, commercial and business park intensity of .25 FAR, minimum common open space of .25, minimum civic space of .10, and other applicable Franklin zoning code provisions. FLUEP 2.25 applies, and at least three land uses are required, "none of which may be less than 10 percent of the total land area." Density, Intensity, and Mixed-Use Standards Petitioners contend that the 2020 Plan provisions, including the SJI FLUMAs, are not "in compliance" for failure to identify densities and intensities of uses and for creating mixed-use categories without percentage distribution or other objective measures of the mix of land uses in each category, as mandated by 9J-5.006(4)(c) and (3)(c)7 and Section 163.3177(6)(a)("distribution, location and extent"). See also 9J-5.013(3)(b)("type, intensity or density, extent, distribution and location of allowable land uses"). However, it is clear that residential densities are provided for each category, and Petitioners concede in their PROs that the mixed-use residential category in FLUEP 2.2(e) has policies/standards for the percentage distribution among the mix of uses, or other objective measurement (of distribution), and the density or intensity of each use. In the ORC, DCA objected to Franklin's proposed plan for failure to identify non-residential intensities and for creating mixed-use categories without percentage distribution or other objective measures of the mix of land uses in each category. In response, Franklin added FAR standards and FLUEP 2.25. DCA's 5/06/2005 staff memo acknowledged the FARs and accepted them. The staff memo also acknowledged FLUEP 2.25 and accepted it as providing a percentage distribution mix of uses for mixed-use residential, mixed-use commercial, MVC, and CEV. However, the staff memo criticized the mixed-use categories for not requiring some residential use. Petitioners contend that, since FLUEP 2.25 does not apply to RV and ConRes, those categories fail to provide a percentage distribution or other objective measures of the mix of land uses. But it is at least fairly debatable that RV and ConRes are not true mixed-use categories, such that 9J- 5.006(4)(c) does not apply. Petitioners also contend that, since ConRes does not have FAR standards, intensity of non-residential uses is not provided for that category. In that regard, Petitioners argue that FLUEP 2.2(m) allows "free-standing non-residential or commercial uses" in ConRes and that Franklin Planner Pierce was unable to state how much of those uses are allowed in ConRes. Actually, FLUEP 2.2(m) disallows such uses if "intended to serve non-residents." It is not clear from the policy that such uses are allowed at all in ConRes since other allowable uses are described as "similar or compatible uses." If such uses are allowable by negative implication, they would have to serve only residents. Arguably, non-residential intensity standards are not required in ConRes. Petitioners put on no expert testimony to explain why the FLUMAs and related policies in the 2020 Plan do not meet the requirements of 9J-5.006(4)(c) and (3)(c)7 and Section 163.3177(6)(a), and they put on no expert testimony that the 2020 Plan is not "in compliance" for those reasons. Meanwhile, experts for the other parties testified that the 2020 Plan is "in compliance." On the evidence presented, it was not proven beyond fair debate that the FLUMAs and related policies in the 2020 Plan create mixed-use land use categories without the percentage distribution among the mix of uses, or other objective measurement, or without the density or intensity of each use. Predictable Standards for MVC and CEV Petitioners attempted to prove that wildly varied development scenarios could result from application of FLUEP 2.25 to MVC and CEV. The evidence did not disclose any reason to believe that uses will be combined so as to maximize certain types of uses and result in lopsided development scenarios. Assuming that were to occur, the evidence was not clear what the maximum possible density and intensity of particular uses could be under various scenarios. This is partly because Franklin's Planner Pierce seemed to interpret MVC and CEV as establishing a maximum gross residential density on the entire acreage (1000 acres for MVC and 200 acres for CEV), regardless how much land actually was devoted to residential uses. Using that interpretation (which runs counter to Mr. Pierce's interpretation of the RV FLUEP), taken to an extreme 2000 DU of residential could be developed in MVC even if 900 acres were used for non-residential uses (e.g., marina and other commercial or office) and only 100 acres were used for residential, and 600 DU of residential could be developed in CEV even if 180 acres were used for non- residential uses and only 20 acres were used for residential. Given those results, such an interpretation does not seem logical. In addition, the applicable Franklin zoning code provisions were not clear. Also, factors such as FAR and ISR limitations and the necessity for "common open space" were not applied in a clear or consistent manner in the testimony. It can, however, be found that, in the unlikely event that lopsided development were to occur, large amounts of either residential or non-residential uses theoretically could develop in MVC and CEV depending on the development scenario. In calculating some alleged development scenarios for MVC and CEV, Petitioners (and Mr. Pierce) also may have been applying the minimum common open space requirements and FAR intensity standards incorrectly. In some instances, they seemed to treat the minimum common open space requirements as if it were a separate allowable land use within the FLUMA and subtract the common open space minimum from total gross acreage to calculate acreage remaining for allowable land uses in the FLUMA. But it is not clear why minimum common open space requirements could (and should) not be incorporated within acreage devoted to the various allowable uses. In some instances, Petitioners (and Mr. Pierce) seemed to apply minimum FAR to gross acreage in the FLUMA to calculate maximum acreage that can be devoted to non-residential land uses. (This also was done for RV. See Finding 58, supra.) But it is not clear why FAR intensity standards should not be applied instead to the discrete acreage devoted to allowable non- residential uses to determine the maximum allowable floor area coverage within the acreage devoted to allowable non- residential uses. Petitioners put on no expert testimony to explain why the unlikely possibility of lopsided development in MVC or CEV makes those FLUMAs and related policies, or the 2020 Plan, not "in compliance." Meanwhile, experts for the other parties testified that the 2020 Plan is "in compliance." On the evidence presented, it was not proven beyond fair debate that the 2020 Plan is not "in compliance" because of the possibility of lopsided development in MVC or CEV. Failure to Consider/React to Best Available Data FLUEPs 11.12 and 11.13 required consideration of eight key areas. These areas included protection of natural resources and cultural heritage, promotion of economic development and emergency management, provision of adequate public facilities and services and affordable housing, and inclusion of intensity standards and allowable uses. Based on all of the documents in the record, the updated 2020 Plan was supported by consideration of each of the eight key areas listed by FLUEP 11.12 and, for the four SJI FLUMAs, by FLUEP 11.13. Petitioners contend that Franklin's 2020 Plan is not based on the best available data existing as of the date of adoption, April 5, 2005, as required by: Section 163.3177(8)("elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to the element involved") and (10)(e)("Legislature intends that goals and policies be clearly based on appropriate data"); 9J- 5.005(2)(a)("shall be based upon relevant and appropriate data and the analyses applicable to each element" and "[t]o 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"); and 9J-5.006(1)(FLUE data requirements). In support of that contention, they cite to a few of the voluminous data in the record submitted by St. Joe and used by Franklin that are not the best available or have errors or a weakness (an unknown source). But their argument concedes that the best available data are in the record, and no expert witness testified that the 2020 Plan is not based on the best available data. To the contrary, Petitioners' expert questioned the quality of the analysis of the data in the adoption package. Meanwhile, expert witnesses for the other parties testified that the 2020 Plan is based on the best available evidence. Petitioners also contend that inconsistent data was used in violation of 9J-5.005(5)(a)("[w]here data are relevant to several elements, the same data shall be used, including population estimates and projections"). While their PRO does not cite any specifics, during the hearing Petitioners directed Mr. Gauthier to two examples. One was that Florida Land Use Cover Classification System data was used to identify wetlands in the FLUE, while National Wetlands Inventory data (supplemented with hydric soils analysis) was used to identify wetlands for the SJI FLUMAs. But those data were used in the same element, not in different elements. The other was that a traffic study in the 6/2004 transmittal package used a projection of 2,965 residential units in the SJI FLUMA while Franklin Planner testified to a different number--3,400. But the higher number represented a theoretical maximum, which is not necessarily the data on which traffic analyses should be based. No expert testified that this constituted the use of inconsistent data in violation of 9J-5.005(5)(a). To the contrary, witnesses for the other parties testified that the 2020 Plan is based on the best available data and professionally acceptable analyses, that the County appropriately responded to the D&A in preparing the Plan update, and that the 2020 Plan is "in compliance." Suitability of SJI FLUMAs and FLUEPs Petitioners contend that none of the SJI FLUMAs are "inherently suitable for development at the permitted density and intensity." In their PRO, they based their contention in large part on FSU's analysis of various criteria, including proximity of three of the FLUMAs to the relatively pristine Ochlocknee River and Bay and their natural resources, presence of wetlands, soil types, floodplains, vegetative cover, habitat for Florida black bear and other wildlife, and alleged karst hydrogeology. They also cite DCA's 5/6/2005 staff memo, the concerns of Drs. Chanton and Livingston about density and intensity increases, and Mr. Gauthier's testimony that he is "concerned and believe[s] that there are compliance problems . . . based on suitability." The evidence might support the proposition that there are more suitable places in Franklin for development, including in the middle of SJI, where St. Joe also is contemplating possible development in the future, and nearer to Apalachicola and Carrabelle. But the middle of SJI would not be suitable for a marina village, and there may be other aspects of St. Joe's planned developments that could not be accommodated on other land available for development. In addition, Franklin wants to protect the land within the Apalachicola River and Bay basin. In any event, the question presented in this case is not whether there are more suitable lands for development. Rather, the question is whether, based on all the evidence presented, it is beyond fair debate that the locations of the FLUMAs are unsuitable. "Development suitability" is defined as "the degree to which the existing characteristics and limitations of the land and water are compatible with a proposed use or development." FLUEP 1.2 requires review of FLUMAs "to insure [sic] that the proposed uses, in the various categories, do not conflict with the prevailing natural conditions including": (a) soil conditions; (b) topography; (c) drainage; (d) wetlands; and (e) floodplains. In their PRO, Petitioners criticize the soil suitability analysis submitted in support of the FLUMAs as being "based upon a subset of on-site soils termed 'predominate' with no percentage quantification and no analysis of the other on-site soils" and as misrepresenting and selectively quoting from the soil survey. See Pamela Ashley PRO, ¶73. But the soils in the SJI FLUMAs were re- analyzed at length during the final hearing. The evidence was that there are upland soils in each SJI FLUMA. In the ConRes FLUMA, the only SJI FLUMA allowing septic tanks, suitable soils and a 500-foot setback from principal surface waters should provide adequate attenuation to accommodate on-site sewage systems. There are soils in each SJI FLUMA that are not the best for the proposed development. These soils are potentially limiting but arguably can accommodate the proposed development, given appropriate site planning and engineering, together with the 2020 Plan's provisions that operate to protect natural resources and environmentally sensitive areas. It was fairly debatable that the soils in the FLUMAs are suitable for the proposed development. Petitioners in their PRO also criticize the topography of the SJI FLUMAs in that parts are subject to inundation during a Cat 1 storm. But the evidence was that low-density development is not necessarily unsuitable in the CHHA, and it was fairly debatable that the topography of the FLUMAs is suitable for the proposed development. As for drainage, each SJI FLUMA requires an SMS employing OFW design criteria. OFWs have special resource value and need heightened protection. A 1991 Plan provision required County SMSs to collect and treat runoff from the first 1.5 inches of rainfall regardless of the area drained. This provision exceeds OFW criteria and applies to each SJI FLUMA. The SMS design criteria, buffers, setbacks, and the nature of development anticipated in each SJI FLUEMA are intended to work in concert to minimize surface water impacts. Employing these elements is anticipated to allow the development of the FLUMAs without impacting surface waters. If there is no measurable pollutant loading to nearby waters, aquatic flora and fauna should experience no impact. Fewer significant seagrass beds are located in waters north of where MVC is located, and it should be possible to site a marina facility there in deeper water without significant seagrasses. The strict SMS design criteria assure the collection and treatment of stormwater for water quality purposes. The SMSs also will provide important sources of groundwater recharge and help protect water quantity. Runoff collected in SMSs is retained on-site and returned to the groundwater component of the hydrologic cycle (minus losses to evaporation and evapotranspiration). The retention of stormwater on-site offsets the potential loss of runoff resulting from increased impervious surfaces, facilitating aquifer recharge. With proper engineering, runoff from each of the SJI FLUMAs could be collected within the required SMSs resulting in minimal or no adverse effect on aquifer recharge on SJI. Recharge rates on SJI vary from high (15 to 20 inches per year) to moderate (10 to 15 inches per year) to low (less than 5 inches per year), depending on location. As indicated, the confining layer between the surficial aquifer and the underlying Floridan aquifer in eastern Franklin thins from west to east but is not believed to degenerate into karst features. See Findings 4-5, supra. Rather, the confining layer in eastern Franklin County appears to vary in thickness from 15 to 20 feet. Assuming no karst features or other anomalies creating a direct conduit to the Floridan, groundwater moves vertically throughout SJI at approximately 2 to 3 feet per year. This rate would provide sufficient time for the natural breakdown (attenuation) of residual pollutants from on-site sewage and stormwater treatment systems as well as any additional pollutants that may be generated such that development within the SJI FLUMAs should not threaten the Floridan aquifer. Lateral flow of groundwater from beneath the SJI FLUMAs also should not pose a risk to surface waters. In contrast to unconfined karst, where the movement of groundwater to and through the Floridan aquifer may be rapid, groundwater appears to move laterally at approximately 100 feet per year in eastern Franklin, providing adequate time for the attenuation of any added pollutants prior to any such groundwater seepage reaching surface waters. Petitioners in their PRO also criticize the amount of wetlands in the FLUMAs. RV has 1,324 wetland acres (78 percent) with 380 acres (22 percent) of "interspersed" uplands; ConRes has 525 wetland acres (21 percent) with 1,975 acres of uplands (79 percent); MVC has 276 wetland acres (28 percent) and 724 upland acres (72 percent); and CEV has 66 wetland acres (33 percent) and 134 upland acres (67 percent). In response to ORC criticism, Franklin's wetlands policies were amended to address "high quality" and "low quality" wetlands and give a higher level of protection to the former. Petitioners criticize the 2020 Plan for not identifying and mapping the high and low quality wetlands. They also rely on Gauthier's opinion that "the wetland policies are flawed, in that they're vague and not specific and there are significant gaps" as a result of exceptions and waivers. They also contend that the 2020 Plan fails to direct development away from wetlands, which will result in degradation of water quality in the Ochlockonee River/Bay and Apalachicola Bay system primarily from increased urban runoff and nutrification. But it is at least fairly debatable that the amended wetlands policy will increase wetlands protections and that wetlands in the FLUMAs can be protected in the course of development as proposed under the amended wetland policies. Each SJI FLUMA allows “clustering,” which concentrates DUs in a portion of the overall site without increasing the overall number of units. Clustering is mandatory in ConRes and CEV. Clustering is advantageous to the extent that it encourages open space, reduces impervious surface, reduces pollutants generated from more widespread development, and enhances aquifer recharge. However, the advantages could be illusory to the extent that clustering simply allows the wholesale transfer of density from a portion of the site where development is unsuitable and should not be anticipated (e.g., high-quality wetlands) to other portions of the site. Such a result would be of particular concern in RV, which is 78 percent wetlands, if all 340 DUs were to be concentrated on 375 acres of uplands, effectively at a density of almost one DU/acre, interspersed among 1,330 acres of high- quality wetlands. (The concern would be even greater if non- residential uses in RV were surprisingly high, and if the interpretation of "gross density" suggested by Franklin's planner for MVC and CEV were applied to RV, thereby further increasing the effective residential density interspersed among high-quality wetlands.) C/CEP 10.1 requires that the County's site plan review process be amended to take into consideration natural constraints, including wetlands, and restricted depending upon the severity of those constraints. Because no site plan has been proposed for any of the SJI FLUMAs, it is unknown to what extent, if any, the privately-owned wetlands may actually be disturbed. It is at least fairly debatable that, given the relatively low overall densities, the extent of available uplands (at least in ConRes and MVC), the arguably-enhanced wetland protections, and properly-implemented clustering, wetlands in the SJI FLUMAs can be protected in the course of development as proposed and that the FLUMAs are suitable for the proposed development notwithstanding the wetlands in the SJI FLUMAs. Petitioners in their PRO also criticize the suitability analysis submitted in support of the FLUMAs for failure to quantify floodplains (although admittedly depicting them on maps and citing FIRM maps), for "inaccurate and generalized narrative," and for stating "that development is allowed 'but flood considerations must be evaluated'." Pamela Ashely PRO, ¶ 76, citing the ORCR. As to "areas subject to coastal flooding" (the hurricane vulnerability zone), all of the SJI FLUMAs are subject to Cat 3 evacuation and the vast majority are within the Cat 3 SLOSH surge area. But some effort was made to focus development outside of the floodplains. Besides, development within floodplains is not prohibited by state or federal law. Rather, development within a floodplain must be constructed above certain elevations and provide compensating flood storage for any displaced flood plain area. The evidence was that low density development is not necessarily unsuitable in the these areas, and it was at least debatable that the FLUMAs are suitable for the proposed development notwithstanding the presence of floodplains in the FLUMAs. Petitioners in their PRO also criticize the suitability analysis submitted in support of the FLUMAs as to "vegetative cover" and "wildlife habitats" for only addressing bald eagle nests and bear sightings and road kill locations, and for generally stating that St. Joe's silvicultural use has "vastly altered" or otherwise displaced the natural vegetation and wildlife habitat. IWHRS data and best available bear data was not addressed in the suitability analysis. However, all of this D&A was presented and analyzed during the hearing. The SJI FLUMAs comprise a fraction of the 1.2 million acres of habitat supporting the Apalachicola black bear population, of which SJI bears are also a fraction. In response to the ORC, Franklin and St. Joe made some accommodation to the black bear by significantly reducing the size of the ConRes FLUMA and removing the Bear Creek area from the FLUMA. The SJI FLUMAs also preserve the possibility of a bear corridor of appropriate dimensions connecting Bald Point State Park on the east end of SJI with the Crooked River Tract and the larger publicly-owned bear habitat to the west. Along with the availability of public lands, residential clustering will help facilitate bear movement through SJI notwithstanding the development of the SJI FLUMAs. Bears should still frequent the FLUMAs when food supplies are ample, even during construction. Even with the accommodation and a corridor, the proposed development will impact the black bear. Road kills occur where bears and roadways mix. (Generally, the more people there are in and near bear habitat, the more problems will arise from bear encounters with people, and the more likely that the resolution of such problems will not benefit the bears.) But the SJI FLUMAs themselves are not considered critical bear habitat, and their development alone should not result in a significant adverse impact on the bear population. While the gulf sturgeon, a protected species, is known to pass through nearby waters, neither the Ochlocknee River nor Bay has been designated critical habitat for the fish. No surface water impacts that would affect the sturgeon were proven. Based on the evidence, it is at least fairly debatable that the SJI FLUMAs are suitable for the proposed development notwithstanding the presence of the black bear, the Gulf sturgeon, and other wildlife now using SJI. Based on the foregoing, it was not proven beyond fair debate that the SJI FLUMAs are unsuitable for the proposed development, notwithstanding the issues raised by Petitioners as to soils, topography, drainage, wetlands, floodplains, vegetative cover, and wildlife and their habitat. Deletion of FLUEP 11.12 and 11.13 The County deleted FLUEPs 11.12 and 11.13 as part of the Plan update. This decision was appropriate because the substantive aspects of FLUEPs 11.12 and 11.13 were considered and would be incorporated within the various provisions of the updated Plan, once effective. Also, the assessments required under those policies must be made regardless of whether policies are included within the Plan because they are required under 9J-5. All of the expert planners--including Mr. Gauthier--testified that the 2020 Plan is "in compliance” notwithstanding deletion of those policies. Once FLUEPs 11.12 and 11.13 are no longer necessary, it is the County’s prerogative to include them in or remove them from the Plan. FLUEP 11.12 required the preparation and adoption of an overlay plan for SJI, which would result in an overlay map and policies. Although an overlay plan was prepared, it was not adopted as part of the 2020 Plan but rather was included as an appendix to the Technical Data and Analysis Report submitted in support of the 2020 Plan update. Potential adoption of the overlay as part of the Plan was a concern to many of the citizens attending the visioning meetings. There was confusion as to what adoption of an overlay into the Plan actually meant and whether it established development entitlements. The County has the discretion to adopt or remove Plan provisions that duplicate or exceed statutory and regulatory requirements. Utilization of the overlay as D&A is consistent with state planning requirements. It was not proven beyond fair debate that the 2020 Plan would not be "in compliance" without the SJI overlay.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that DCA enter a final order determining that Franklin's 2020 Plan update, with SJI FLUMAs, is not "in compliance" at this time. DONE AND ENTERED this 12th day of June, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2006.
