Findings Of Fact Respondent, Mid-Keys Development Corporation (Mid-Keys), is the owner of Lot 98, Stirrup Key Subdivision, Monroe County, Florida; a property located on Florida Bay, a natural waterbody, and within that part of Monroe County designated as an area of Critical State Concern. On September 12, l989, Monroe County issued to Mid-Keys building permit No. 8920001017 to construct a single-family home on Lot 98. As permitted, the home would be constructed 20 feet landward of the top of a dike or berm which runs along the rear of the property, as well as approximately 20 feet landward of a mangrove fringe which parallels the shoreline of the property. 1/ Petitioner, Department of Community Affairs (Department) pursuant to Section 380.07, Florida Statutes, appealed the issuance of the subject permit, and contends that, as permitted, construction of the home would violate Monroe County's comprehensive plan and land development regulations. Succinctly, the Department contends that under existent regulations the proposed home must be set back 50 feet from the landward limit of the mangrove fringe. Central to the dispute in this case are the provisions of Section 9.5- 286, Monroe County Land Development Regulations (MCLDR) which provide: Sec. 9.5-286. Shoreline setback. All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide lines of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The regulations do not, however, expressly define the location of the shoreline for purposes of assessing whether it is altered or unaltered, and thereupon rests the basis for the parties' dispute. In this regard, Mid-Keys contends that the development of Stirrup Key legally altered the shoreline, which it suggests a extends to the higher high tide line, and the Department contends that such development did not alter the shoreline, which it a suggests extends to the mean high tide line. The creation of Stirrup Key Subdivision. Stirrup Key is an island in Florida Bay, a natural waterbody, comprising approximately 50 acres. Currently the key is platted as Stirrup Key Subdivision; a residential community which is attached to Key Vaca by a short causeway. The character of Stirrup Key as it exists today is, however, decidedly different from what existed less than two decades ago. In March 1972, when Stirrup Key was purchased by William T. Mills, it was a low-lying island with an average elevation of two feet or less mean high water (MHW) and it was virtually untouched by man. Portions of its shoreline were covered with red mangroves, followed upland by transitional a species such as black mangrove, white mangrove, and buttonwood, and portions of its higher elevations contained some hammock. Following his acquisition of Stirrup Key in 1972, Mr. Mills, consistent with regulations existent at that time, sought and obtained the approval of all governmental agencies necessary to develop the key as it currently exists. Pertinent to this case, the Florida Department of Pollution Control (currently known as the Department of Environmental Regulation) on June 24, 1974, issued to Mr. Mills a dredge and fill permit and water quality certification to excavate on Stirrup Key an upland lagoon to minus 5.0 feet mean low water, together with an access channel, with the spoil from the excavation to be placed on upland, landward of mean high water. As a condition, the permit provided that "[n]o spoil below MHW but in upland spoil area diked along shoreline" and "[m]angrove fringe along shoreline will be preserved." Notably, the plans which were submitted to the Department of Pollution Control by Mr. Mills, and which were attached to the permit, established the boundary of the island at the mean high water line and designated the mean high water line as the shoreline. Also pertinent to this case, the State of Florida, Board of Trustees of the Internal Improvement Trust Fund, on July 22, 1974, issued to Mr. Mills a permit to dredge 72,265 cubic yards of material (1,265 cubic yards from sovereignty submerged land) from a proposed upland boat basin, together with an access channel and two circulation channels, with the spoil to be deposited on the uplands, and to construct a dike around the entire perimeter of Stirrup Key above the mean high water line. The Trustee's permit also provided that "[n]o spoil shall be deposited below mean high water but in upland spoil area diked along shoreline" and "[t]he mangrove fringe along shoreline will be preserved." Consistent with the foregoing permits, Mr. Mills undertook the development of Stirrup Key. In so doing, he constructed a dike around the entire perimeter of the island, with the toe of the dike landward of MHW, removed the transitional vegetation landward of MHW, and filled the area landward of MHW with limestone fill to an elevation of 4 to 9 feet MHW. Also consistent with his permits, Mr. Mills preserved the mangrove fringe along the shoreline. 2/ While the wetlands system of Stirrup Key has been altered by the removal of the upland transitional vegetation and the filling of the area lying landward of MHW, the function of the shoreline mangrove fringe has not been altered by the development of the island. That fringe, which extends approximately 3,000 feet along the shoreline and which measures from 60 to 100 feet in width at Lot 98, continues to provide, among other things, wildlife habitat for numerous species of birds; fisheries habitat for food, cover and refuge; shoreline stabilization; and storm surge abatement. In 1976 the plat of Stirrup Key Subdivision, which encompassed all the lands of Stirrup Key, was approved by Monroe a County and filed of record. That plat, as well as the survey of Lot 98, demonstrate that the boundaries of Stirrup Key follow the mean high water line. The Monroe County comprehensive plan and land development regulations. The Monroe County comprehensive plan, effective September 15, 1986, provides: 11. FUTURE LAND USE ELEMENT Sec. 2-101. Introduction. A fundamental component of any comprehensive land management program is a series of discrete policy statements by which individual land use decisions will be judged in the future. Indeed, a basic tenet of contemporary land management theory and the Local Government Comprehensive Planning Act, Sections 163.3161 et seq., Fla. Stat. is that land use decisions shall be consistent with a comprehensive plan. After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted. All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan or element or portion thereof. 163.3194(1), Fla. Stat. The Comprehensive Plan for Monroe County contemplates that the land use policy element and implementing regulations will be closely coordinated and designed to ensure fair and consistent land use decision-making. Incorporating the policy statements into the implementing regulations will go a long way toward overcoming many of the due process deficiencies that plague land use decision- making. Under this Plan, a request for development approval will be judged, not on the basis of an intuitive perception of the County's needs, the identity of the applicant, or the clamor of opponents, but on the adopted policies set out in the Plan. If the requested approval is inconsistent with these adopted policies, it should be denied, or the policies should be changed through the established procedure for amendments. If the proposed development is consistent with the Plan, it should be approved. Linking individual decisions to adopted policies will help to bring consistency, fairness, and a comprehensiveness to the development review process. The purpose of this element of the Monroe County Comprehensive Plan is to establish official land use policies that will guide future land use decisions in the County . . . . Sec. 2-102. General. A. OBJECTIVES 1. To establish a land use management system that protects the natural environment of Monroe County. Sec. 2-103. Natural Environment. The Florida Keys constitute a unique and irreplaceable natural resource of local, regional, state, national and international value. The Florida Keys are an island archipelago constituting a tropical experience accessible by automobile from the a continental United States. As such, the Keys are a vacation and residential resource unmatched in beauty, character and security in the continental Untied States. The natural environment of the Florida Keys -- uplands, wetlands, and nearshore waters -- is the central element of this distinctive character. In the Florida Keys, a distinct visual character, native and tropical vegetation, water-dependent recreation, distinct culture and an oceanic experience come together to make a desirable place to live and visit. It is essential, therefore, that the natural environment of Monroe County be conserved, and where appropriate, enhanced and restored. All future actions, both public and private, should be carried out in a way so as to ensure that the essential ingredients of Monroe County character are preserved and protected for existing and future generations. OBJECTIVES To manage and control the use of land so that the natural environment of Monroe County is protected. POLICIES To protect natural, undisturbed lands from significant disturbance. To protect threatened and endangered species and their habitats from human activities that would expose such species to displacement or extinction. To conserve the habitat of endemic species of plants and animals. Sec. 2-115. Enforcement A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirements of this Plan and that the integrity of the development review process be protected. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrass, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies These biotic communities will be preserved to the fullest extent possible. The Monroe County land development regulations, likewise effective September 15, 1986, provide: Sec. 9.5-3. Rules of construction In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of county commissioners as expressed in the Monroe County Comprehensive Plan, or an element or portion thereof, adapted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. A. Generally: All provisions, terms, phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specifically provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling. f. Nontechnical and technical words: Words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be constructed and understood according to such meaning. m. Boundaries: Interpretations regarding boundaries of land use districts on the land use district map shall be made in accordance with the following, as partially illustrated in figure 1 [following this section]: Boundaries shown as following or approximately following the shorelines of any key or causeway or other island shall be construed as following the mean high water line of such island or key. In many instances, the boundary lines have been intentionally drawn seaward of the shoreline so that the shoreline itself will be visible. Sec. 9.5-286. Shoreline setback All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide line of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The shoreline, altered or unaltered? While the Monroe County land development regulations do not expressly define the term "shoreline" with reference to a specific point for purposes of determining whether a shoreline has been lawfully altered or unaltered, a reading in pari materia of the rules of construction and the shoreline setback requirements compels the conclusion that such determination is made by reference to the mean high water line of Stirrup Key when it was developed. This definition of shoreline is consistent with Section 177.28(1), Florida Statutes, which defines the legal significance of the mean high water line as: Mean high-water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership . . . . It is likewise consistent with the peculiar and appropriate meaning in law that has established the shoreline at the mean high water line. See: Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548 (1894), Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, reh. denied 296 U.S. 664, 56 S.Ct. 304 (1935), Axline v. Shaw, 35 Fla. 305, 17 So. 411 (1895), Board of Trustees of the Internal Improvement Trust Fund v. Walker Ranch General Partnership, 496 So.2d 153 (Fla. 5th DCA 1986), and Helliwell v. State, 183 So.2d 286 (Fla. 3rd DCA 1966). It is also consistent with the expressed intent of the developer of Stirrup Key and the governmental agencies that permitted such development, and it is consistent with Monroe County's land development regulations which define boundaries of islands which are shown as following the shoreline to be at the mean high water line. 3/ Accordingly, the shoreline of Stirrup Key, and more particularly Lot 98, is unaltered and a 50-foot setback from the landward limit of existing mangroves is mandated by the MCLDR.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number 8920001017, and deny Mid-Keys' application for such permit. It is further recommended that such final order specify those items set forth in paragraph 8, Conclusions of Law, as the changes necessary that would make Mid-Keys' proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June 1990.
Findings Of Fact The Resource Recovery Facility The purpose of the proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,352 tons of refuse each day, and generate up to 62.5 megawatts of electrical power. The ultimate capacity of the facility is 3,300 tons of refuse each day, and a generating capacity of 96.1 megawatts. The proposed RRF complex will include a gatehouse and weigh station, refuse receiving and handling building, turbine generator building, administrative building and two landfills for the disposal of ash residue and non- processable solid waste. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse and receiving building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is a predominantly undeveloped 248-acre parcel of land situated at the southeast intersection of US 441 (State Road 7) and State Road (SR) 84, an unincorporated area of Broward County. The site is bounded on the north by the right-of- way for I-595, the northerly part of its east boundary by the proposed Ann Kolb Park, the southerly part of its east boundary and the south by the South Fork of the New River Canal (New River Canal), and the west by US 441. The uses surrounding the site are mixed. Located east of the site, and south of the proposed Ann Kolb Park, is a large fossil fuel electric generation facility owned by Florida Power & Light Company (FP&L). To the south, across the New River Canal, is a mixed residential- commercial area of single family residences, duplex residences, and marine-oriented businesses (marinas and fish wholesalers). To the west of US 441 is a mixture of light, medium, and heavy industry, including industrial office space, auto salvage facilities and prestressed concrete pouring yards. North of the right-of-way for I- 595, and SR 84, is a mixture of strip commercial and residential usage. Although the site itself is predominantly unoccupied pasture land, some of its lands have been developed. The southern portion of the site, abutting the New River Canal, is occupied by a marine engineering firm which operates dry dockage and related facilities (heavy industrial use). The other uses currently existing on the site are for a nursery and the sale of prefabricated sheds. Bisecting the site is a parcel of land presently being developed by the City of Fort Lauderdale (City) for a sludge composting facility. Broward County proposes to locate the RRF south of the City's facility, and the landfills north of the City's facility. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan) and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF, with attendant land fill, is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans. Prior to rezoning, various portions of the site were zoned A-I Limited Agricultural, B-3 General Business, M-3 General Industrial, and M-4 Limited Heavy Industrial. Permitted uses ranged from cattle and stock grazing (A-1) to asphalt paving plants, junk yards and the storage of poisonous gas (M-4). On March 16, 1984, the Board of County Commissioners of Broward County approved the rezoning of the site to a Special Use Planned Unit Development District (PUD), and approved the RRF conceptual site plan. The proposed RRF, and attendant landfill, constitute a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, are permitted nonresidential uses. The Department of Community Affairs, the Department of Environmental Regulation, and the South Florida Water Management District concur that the proposed RRF appears to be consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. South Broward Citizens for a Better Environment, Inc. (SBC) was the only party to contest the consistency of the proposed RRF with existing land use plans and zoning ordinances. SBC asserted that the proposed RRF violates: (1) the coastal zone protection element of the Broward County Comprehensive Plan, because the environmental impact assessment required by that element of the plan was inadequate or not done, (2) the urban wilderness inventory guidelines of the Broward County Comprehensive Plan, because the environmental effects of the proposed RRF on the area proposed to be designated as an urban wilderness area (proposed Ann Kolb Park) would outweigh the benefits of the project, and (3) Section 13 of Ordinance numbers 84- 6(2) and 84-7(2), which approved the rezoning for the site, because the impact assessment required by the Ordinances had not been prepared. While the coastal zone protection element and urban wilderness inventory guidelines of the Broward County comprehensive plan were germane to Broward County's decision to rezone the site and approve the development, they are not pertinent to this land use hearing. Broward County's decision is final, and these proceedings do not provide a forum to collaterally attack it. The relevance of SBC's assertions aside, the evidence presented established that the proposed RRF did not violate the coastal zone protection element, the urban wilderness inventory guidelines, or any other element of the Broward County Comprehensive Plan. SBC's assertion that the proposed RRF will violate Section 13 of the rezoning ordinances is ill- founded. Section 13 provides: PRIOR TO LANDFILL DEVELOPMENT, AN IMPACT ASSESSMENT SHALL BE PREPARED BY THE RESOURCE RECOVERY OFFICE OF BROWARD COUNTY TO ADDRESS THE POTENTIAL HYDROLOGICAL IMPACTS OF THE DEVELOPMENT OF THE LANDFILL ON ANN KOLB PARK. DATA AND INFORMATION UTILIZED TO OBTAIN FDER PERMITS WILL BE USED TO CONDUCT THIS ASSESSMENT. IN THE EVENT POTENTIALLY SIGNIFICANT IMPACTS ARE IDENTIFIED, A MANAGEMENT PLAN SHALL BE DEVELOPED TO OFFER RECOMMENDATIONS AND MITIGATIVE ACTIONS TO INSURE THE INTEGRITY OF ANN KOLB PARK. (Emphasis supplied) The evidence is clear that an impact assessment is only required before development commences. Consequently, the proposed RRF does not violate the rezoning ordinances. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel, a daily newspaper, on July 4, 1985, and also in the Florida Administrative Weekly on June 28, 1985.
The Issue Miami-Dade County's Krome Avenue is a two-lane, undivided highway. In October 2002, the Board of County Commissioners for Miami-Dade County (the Commission) passed Ordinance No. 02-198. The ordinance adopted an amendment composed of several parts to the County's Comprehensive Development Master Plan (CDMP). Among the parts of the amendment were changes and additions to the CDMP initiated by an application ("Application No. 16") that relate to Krome Avenue (the "Plan Amendment.")1 Quite detailed, the Plan Amendment, in essence, makes changes that re-designate a substantial segment of Krome Avenue from 2 lanes to 4 lanes. The Plan Amendment's additions add all of Krome Avenue as a Major Route among the CDMP's designated evacuation routes in the year 2015, create new policies related to approval of use of land in the vicinity of Krome Avenue designated as a four-lane roadway and create a new policy related to planned capacity improvement to the roadway, including widening to four lanes. The issue in this growth management case is whether the Plan Amendment is "in compliance" as defined in the Local Government Comprehensive Planning and Land Development Regulation Act. Preliminary Statement Under cover of a letter dated January 17, 2003, the Department of Community Affairs (the "Department" or "DCA") forwarded to the Division of Administrative Hearings (DOAH) a petition that requested a formal administrative hearing. The petition was "forwarded [to DOAH] for assignment of an Administrative Law Judge pursuant to Section 163.3184(9), Florida Statutes." The petition was filed by the Sierra Club and John S. Wade, Jr., against the Department and Miami-Dade County (County) after the Department had issued a notice of intent to find the Plan Amendment transmitted by the County "in compliance" with the Local Government Comprehensive Planning and Land Development Regulation Act (the "Act" or the "Growth Management Act") contained in Part II of Chapter 163, Florida Statutes. The petition alleges that the Plan Amendment is "not in compliance as defined in section 163.3184(1), Fla. Stat., because it is inconsistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, the state comprehensive plan, with appropriate strategic regional policy plan, and with Chapter 9J-5, FAC." Petition for Formal Administrative Hearing, p. 4, paragraph 16. For relief, the petition requests, inter alia, that the administrative law judge enter a recommended order finding that the Plan Amendment is not in compliance. Upon receipt of the petition, DOAH assigned it Case No. 03-0150GM. Charles A. Stampelos was designated as the Administrative Law Judge to conduct the proceedings. A Notice of Hearing was issued that set the case for final hearing in March and April 2003. In February, the case was continued until September 2003 and in July 2003, the case was re-assigned to the undersigned. Prior to final hearing, two petitions to intervene were filed: the first, by Monroe County in support of Petitioners2; the second, in support by the City of Homestead in support of DCA and Miami-Dade County.3 Both were granted subject to proof of standing. Prior to hearing, a number of unopposed motions for continuances were granted. In addition, three motions were filed by the County: one for summary final order, a second to relinquish jurisdiction and issue a recommended order and the third a motion in limine. The three motions were denied. The case proceeded to final hearing in September 2005 in Miami, Florida. The evidentiary portion of the final hearing opened with the introduction and admission of most of the joint exhibits admitted over the course of the hearing. All in all, 60 joint exhibits were offered and admitted. They are marked as Joint Exhibit Nos. 1-17, 19-27, 29-31, 34-44, 46-49, 51-57, and 59-67. Petitioners commenced the presentation of their case-in- chief first. They presented the testimony of seven witnesses: Dickson Eazala, Comprehensive Planner with Miami-Dade County; Kay Bismark, an expert in the Redland area real estate market; John S. Wade, Jr., Petitioner; Rodrick Jude, Chair of the Sierra Club's Miami Group Executive Committee; Thomas Van Lent, an expert in the field of southern Everglades hydrology and restoration; Charles Pattison, Executive Director and Planner for One Thousand Friends of Florida and an expert in comprehensive planning and compliance under the Growth Management Act; and, Diane O'Quinn, Director of Miami-Dade County's Department of Planning and Zoning, an expert in the field of comprehensive planning. Petitioners offered 13 exhibits, marked as Petitioners' Exhibit Nos. 9-13, 17-19, 21-23, and 29-30. Petitioners' Nos. 18 and 23 were rejected and then proffered by petitioners. The rest of the exhibits offered by Petitioners were admitted. Intervenor Monroe County presented the testimony of Timothy McGarry, Director of Growth Management in Monroe County and an expert in land planning. Monroe County offered two exhibits, marked as Monroe County Exhibit Nos. 1 and 2; both were admitted. Miami-Dade County presented the testimony of Thomas Pelham, an expert in the fields of comprehensive planning and review of plans and plan amendments for compliance with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 9J-5; Alice Bravo, District Planning and Environmental Management Engineer for the Florida Department of Transportation (FDOT); and Jonathan Lord, Emergency Management Coordinator with Miami- Dade County's Office of Emergency Management. Miami-Dade County offered two exhibits, marked as Miami-Dade County Exhibit Nos. 1 and 2; both were admitted. The Department of Community Affairs presented the testimony of Paul Darst, Senior Planner in the Department, an expert in the fields of comprehensive planning and the review of comprehensive plan amendments with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 97-5. The Department offered one exhibit, marked as DCA Exhibit No. 1. It was admitted. After a number of motions granted to extend the time for the filing of proposed orders, the parties filed timely proposed recommended orders on February 3, 2006. This Recommended Order follows.
Findings Of Fact Krome Avenue Less than a mile south of downtown Florida City, at a "fork in the road" for a driver headed north, Krome Avenue branches off of US 1 (South Dixie Highway). It heads in a northwesterly direction for a short distance, turns due north through Florida City and the City of Homestead and then bolts northward across a considerable stretch of western Miami-Dade County. With only a slight directional variation at an intersection with Kendall Drive, the road continues its due north run until its last several miles when it turns northeasterly before it merges with US 27 (Okeechobee Road) just shy of the Broward County line. Over its 37-mile span, there are a number of significant features of the two-lane undivided roadway. Known also as 177th Avenue, it serves as the main street for the City of Homestead, a municipality hard-hit by Hurricane Andrew in 1992. It treads along the edge of the Everglades Protection Area. In the south, Krome Avenue's locus varies in distances relatively close to Everglades National Park. In the case of Water Conservation Area 3 (WCA-3) to the north, the roadway abuts the Everglades sector's politically-drawn east border. For most of its length north of US 41 or the Tamiami Trail it fragments wetlands designated as "Environmental Protection" with WCA-3 to the west and an extension of the historical Everglades to the east. It also traverses the Redland, an expansive tract of prime agricultural land packed between suburbs and the fabled River of Grass. Krome Avenue's cross of the Redland renders it a route essential to agricultural interests in the area. The roadway is used to transport harvested row crops and as a means to get produce from fruit and vegetable groves to market in the face of competitive pressure from Mexico and Central America, competition generated by the North American Free Trade Agreement (NAFTA) since its adoption during the Clinton Administration. Lately, Krome Avenue has been a shipping lane for bush, flower and tree products from recently-arisen container nurseries dedicated to ornamental horticulture. The burgeoning nursery business supports the landscaping needs of the real estate and building industries in a county that has experienced explosive residential and commercial growth recently due in substantial part to stimulation from a financing environment of low interest rates that has persisted for more than half a decade. Due to Krome Avenue's proximity to the Everglades, any proposed and adopted amendments to the CDMP or local zoning action that might promote improvement of the roadway draws attention of some involved in the Comprehensive Everglades Restoration Project (the "Project" or "CERP"). The Project, called for by Congress to be completed by the U.S. Army Corps of Engineers in a joint effort with the state and the South Florida Water Management District (SFWMD) involves the expenditure of prodigious governmental funds and utilization of ground-breaking science. Of considerable interest to many communities, residential, commercial, environmental, agricultural, and scientific, to name some of the more obvious, CERP is the subject of government involvement at all levels. Of concern is anticipation that improvement to Krome Avenue supported by CDMP amendments threatens to contribute to rises in the value of property that is being sought or may be sought for governmental acquisition to further CERP at a time when there are various forces in play to reduce funding for the Project. A Significant Roadway Krome Avenue's is Miami-Dade County's westernmost roadway of statewide significance. The CDMP recognizes this status: it classifies the roadway as a state principal arterial roadway. The state likewise recognizes Krome Avenue's significance. FDOT has designated Krome Avenue a corridor in the Florida Intrastate Highway System (FIHS)4 developed to address requirements for a National Highway System imposed by the Congress' Intermodal Surface Transportation and Efficiency Act (ISTEA) of 1991. The Plan Amendment makes it is a hurricane evacuation route for residents and the transient population of south Miami-Dade County and provides an alternative evacuation route to Monroe County and the Florida Keys, an area sensitive to effects generated by residential development in south Florida. Despite its import to local, state and national transportation systems and the recognition of that import in the last several decades, the roadway has remained an undivided rural two-lane highway. Its configuration and the transportation demands that have increased in recent years have led to concerns about safety on much of Krome Avenue. Krome Avenue Safety The 33-mile segment of the corridor between Southwest 296th Street and US 27 exhibits a vehicular crash rate that is consistently higher than the statewide average for highways with the same characteristics. A significant portion of those crashes have resulted in fatalities or severe injuries. Between 1995 and 1999, there were 966 total vehicular crashes, of which 106 resulted in severe injuries and 16 resulted in fatalities. The number of crashes resulting in fatalities increased significantly after 1999. Between January 2000 and July 2002, there were an additional 26 crashes resulting in fatalities. Between 1995 and 2002, a total of 59 people died on Krome Avenue in the 42 crashes involving fatalities. Fatal crashes occurred in four segments of Krome Avenue as indicated here: Road Segment Crashes Deaths Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 16 26 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 3 4 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 16 21 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 7 8 Of the 42 fatal crashes between 1995 and 2002, 15 were the result of head-on collisions. Another 15 were the result of centerline crossovers, where a vehicle traveling in one direction crossed over the roadway centerline and struck a vehicle traveling in the opposite direction. Crossover collisions differ from head-on collisions in that the point of impact is usually at an angle. Head-on collisions and crossover collisions on Krome Avenue are due at least in part to its configuration as a two- lane, undivided road. Because crashes occurred throughout the 33-mile corridor and not just at intersections, independent transportation engineering consultants retained by FDOT to analyze conditions on Krome Avenue recommended that a safety improvement plan should be considered for the entire corridor. (See paragraphs 18. to 28., below.) Daily traffic volumes on Krome Avenue increased steadily between 1995 and 2001, growing at a rate of over 10 percent per year. In 2001, weekday traffic volumes were approximately 14,000 to 15,000 vehicles between S.W. 8th Street and S.W. 296th Street and approximately 9,000 vehicles between US 27 and Southwest 8th Street, as illustrated in the following table: Road Segment Avg. Daily Traffic 2001 Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 9,000 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 14,800 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 14,500 Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) 14,600 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 14,100 Long-range traffic projections indicate that by the year 2020, weekday traffic volumes will be between 18,000 and 21,000 vehicles south of S.W. 8th Street, and approximately 12,000 vehicles to the north. No projection suggests that traffic will decrease. Indeed, traffic models for Miami-Dade County have systematically underestimated actual traffic volume. Many intersections on Krome Avenue operate with unacceptable levels of delay, which affect drivers’ overall travel times. These conditions are reasonably expected to degrade over the coming decades. The increased traffic volume and attendant diminution in Level of Service mean that a large percentage of motorists on Krome Avenue are not able to travel at desired speeds. Slow- moving vehicles impede drivers’ forward progress, but because Krome Avenue is a two-lane road with a high volume of traffic traveling in both directions, drivers are not able to pass those vehicles. The result is an increase in driver frustration. The number of head-on crashes on Krome Avenue indicates that many drivers, as they get frustrated, are more willing to attempt risky passing maneuvers. Because passing generally involves higher speeds, crashes that result from risky passing maneuvers are more likely to result in fatalities or severe injuries. The problems associated with driver frustration are further exacerbated by the increasing volume of large trucks on Krome Avenue. The number of trucks as a percentage of overall traffic varies between 26 percent and 32 percent of daily traffic. Trucks contribute to delays at intersections and, thus, to overall delays in travel times. Trucks have difficulty turning off of Krome Avenue, thereby encouraging vehicles to attempt to pass them; those vehicles in turn pose a hazard to oncoming traffic, because they are obscured by the truck. Finally, the high percentage of trucks on the road contributes to an increase in the severity of crashes involving trucks. In general, because of the difference in size and speed between trucks and automobiles, the two types of vehicles should be separated as much as possible especially by a median separating lanes of traffic proceeding in opposing directions. The 1999 Krome Avenue Action Plan In 1999, FDOT produced the Krome Avenue Action Plan (the "Action Plan.") The Action Plan followed by nine years the Florida Legislature's adoption of the FIHS of which Krome Avenue is a part. FIHS standards require that FIHS roadways be designated as controlled access facilities and that they be configured with a minimum of four lanes divided by a restrictive median (the "FIHS Directive"). Attempts to bring Krome Avenue into compliance with the FIHS Directive met with difficulties described in the Executive Summary of the Action Plan: To begin the long-range planning process required to achieve this directive, the Florida Department of Transportation (FDOT) programmed various phases of improvement for Krome Avenue in their tentative work program. This work program was adopted by the Metropolitan Planning Organization (MPO) as the Miami-Dade County Transportation Improvement Plan (TIP) and provides funding for a more detailed study of the corridor. This action set off a string of controversial meetings and hearings regarding the consistency of the TIP, the Miami-Dade County Comprehensive Development Master Plan (CDMP), and local government comprehensive plans. In response to the controversy, the MPO modified their TIP to eliminate consideration of Krome Avenue as a four (4) lane divided roadway with landscaped medians throughout the facility. In February 1997, FDOT began analyzing the Krome Avenue corridor and developing the Krome Avenue Action Plan. During the public involvement process, several alternatives were developed to preserve Krome Avenue as a two (2) lane roadway. The results of sixteen (16) months of public involvement activities and engineering analysis identified the need to preserve the rural character of the corridor while providing safety and operational enhancements to the existing roadway. Joint Exhibit 19, pgs. i-ii, (emphasis supplied). In light of difficulty in reaching "consensus and public acceptance for any improvement alternative," id., p. ii, the Action Plan was conducted "as a precursor to the requisite Project Development and Environment (PD&E) Study to avoid the expenditure of the large sums of public funds in a study effort, with no resulting project." Id. The Action Plan required that Krome Avenue be maintained as a two-lane road, and it recommended improvements, such as adding additional lanes and traffic signals at intersections; implementing an access management plan to limit the number of driveways and cross-street connections to Krome Avenue and to restrict turns off of the roadway; enhancing road shoulders; providing passing zones; adding pedestrian and bicycle facilities; improving pavement markings and signs; and widening the areas from the edge of the roadway that are free of obstructions, known as clear zones, to prevent crashes that result from drivers running off of the road. The Action Plan was premised on traffic volume projections for the year 2010 that were exceeded or were nearly exceeded by the traffic actually observed in 2001, nine years before the final projection. In addition, the amount of traffic observed in 2001 was close to the amount of traffic projected for 2020: Road Segment 2010 KAAP Forecast 2020 KAAP Forecast 2001 Avg. Daily Traffic Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 9,349 10,475 9,000 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 14,713 16,486 14,800 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 14,713 16,486 14,500 Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) 12,730- 16,351 13,486- 18321 14,600 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 11,921- 16,917 12,629- 17,921 14,100 Furthermore, after the Action Plan, that is, after 1999, the number of fatal crashes increased significantly. The increase was noted in an "Existing Level of Service Study" prepared for District VI of FDOT by Kittelson & Associates, Inc., (the "Kittelson Report"). The Kittelson Reports In 2002, FDOT retained Kittelson & Associates (“Kittelson”), independent transportation planning and engineering consultants, to report on Krome Avenue. Kittelson produced two reports in August and October of that year (the "First Kittleson Report" and the "Second Kittleson Report"). The First Kittleson Report is entitled “SR 997/Krome Avenue Existing Level of Service Study” and the Second Kittleson Report is entitled “SR 997/Krome Avenue Future Conditions Analysis and Mitigation Measures.” See Joint Exhibits 15 and 49. The 1999 Action Plan, prepared in the wake of public controversy and concerns regarding consistency between the CDMP and the FIHS Directive, directly addressed those concerns and reached a compromise in the conflict. As stated in the last paragraph of its Executive Summary: Although the improvements in the Krome Avenue Action Plan do not result in a facility that meets all FHS standards, the Action Plan represents the best compromise among a wide range of diverse interests including hundreds of interested residents, agency staff, and elected officials. Joint Exhibit 19 (emphasis supplied). Unlike the Action Plan, however, Kittelson's focus, as stated in the opening sentence of its Executive Summary in the First Kittleson Report, was squarely on level of service and safety issues: "The purpose of this study is to perform a detailed Level of Service and safety analysis for existing conditions along the SR 997/Krome Avenue (177th Avenue) corridor." Joint Exhibit 15, pgs. II and 2. In the Second Kittleson Report, Kittleson summarizes its finding with regard to the increase in the number and severity of crashes on Krome Avenue: . . . [I]t is clear that traffic volume growth and increasing levels of congestion have contributed to driver frustration and attempts to make risky passing maneuvers on Krome Avenue. This has probably led to an increase in the number and severity of crashes in the corridor. Joint Exhibit 49, p. E-V. The Second Kittleson Report recognized that short of widening to a divided, four-lane roadway, there are a number of congestion and safety measures that could be considered to enhance mobility and safety, some of which were recommended by the 1999 Action Plan and some that were in addition to that plan. But the Second Kittleson Report argued for consideration of widening Krome Avenue to a four-lane divided roadway: . . . [T]here are four factors that, in combination, argue for the consideration of widening Krome Avenue to a four lane divided section: The fact that Krome Avenue is on the Florida Intrastate Highway System and the requirement that it be designated as controlled-access facility with a cross-section that provides for at least four lanes with a restrictive median. The likelihood that the high percentage of trucks that use the entire length of the corridor Id. contribute to an increase in crash severity when trucks are involved in crashes. The increasing levels of roadway and intersection congestion and the difficulty in mitigating these levels of congestion short of providing for additional north-south through movement capacity. The crash experience on Krome Avenue exceeds the statewide average for this type of roadway. The high number of crashes and the increase in crash severity (as demonstrated by an increase in the number of fatal crashes largely due to head-on and angle collisions) that likely would be mitigated by physically separating the directions of travel with a median. In a section of the Second Kittelson Report under the heading of "Availability of Passing" Kittelson details the problems with passing on a two-lane undivided Krome Avenue, the contribution these problems make to head-on collisions and the high speeds at which passing maneuvers occur. The report concludes that several measures should be considered to counter safety issues associated with passing maneuvers, among them, the addition of passing lanes and a median separated two-lane section. The first countermeasure recommended, however, is the creation of a four-lane section: A four-lane section eliminates the need for drivers to judge the adequacy of gaps in opposing traffic and use the opposing lane to perform the passing maneuver. The length and placement of a four-lane section can vary (for example, a four-lane section can be located between intersections or on a specific stretch of roadway). It is noted that in areas where access to roadside properties exists or is planned, a four-lane section should be median separated and that left-turn lanes need to be provided to minimize crossover crashes and rear-end crashes. A properly designed four-lane section can be expected to nearly eliminate head-on crashes (a crash type that often results in severe injuries or fatalities) and reduce the total number of roadway crashes associated with passing maneuvers. Joint Exhibit 49 (emphasis supplied). The Second Kittleson Report notes that "[w]hen considering potential countermeasures, it is important to note that one treatment does not have to be applied to the entire corridor." Joint Exhibit 49, p. 36. The reason is that there are a number of issues including safety that should be examined. The Second Kittelson Report reaches the conclusion, therefore, that "[a]n alternative analysis that considers issues such as available right-of-way, environmental impacts, safety benefits, operational benefits, and community concerns should be completed in order to decide what the preferred treatment should be." Id. In light of four factors stated above and specifically, the solution to head-on collisions offered by upgrading a two-lane undivided highway to a four-lane divided highway, Kittelson in the Second Kittleson Report recommends, "that a Project Development and Environment process be conducted to consider the range of solutions for improving the operational and safety characteristics of Krome Avenue." Joint Exhibit 49, p. E-V. The Kittleson reports, therefore, went a step beyond the 1999 Action Plan. They call for improvement of some or all of Krome Avenue to a four-lane section with a restrictive median as one of the solutions, among a range of solutions, to safety on Krome Avenue. Before such an improvement can take place, however, FDOT must conduct a Project Development and Environment Study (a "PD&E Study.") FDOT's Position FDOT is solely responsible for funding and building improvements to Krome Avenue. FDOT has neither a rule nor an un-codified policy that it will not consider funding or building an improvement to a road under its jurisdiction when improvement would be inconsistent with an applicable local comprehensive plan. Nevertheless, as made clear in the 1999 Krome Avenue Action Plan, FDOT is plainly sensitive to undertaking expensive studies necessary to roadway improvements that are inconsistent with local comprehensive plans. A PD&E Study is resource-intensive in time, money and FDOT commitment. Inconsistency with a local comprehensive plan is not a prescription for action on roadway improvement; rather it tends to produce a situation laden with complication as FDOT's District Engineer testified at hearing: (Tr. 768) Q. . . .[I]f this plan amendment which authorizes the widening, on the comprehensive plan, to four lanes, if this amendment is rejected, what happens next? A. . . . [W]e would have to stop and consider the circumstances, the situation, a lot of different factors before we decided whether or not to proceed with the ... study. FDOT has long been aware of safety problems on Krome Avenue. In the wake of the Kittelson Reports commissioned after a rapid rise in life-threatening traffic accidents on Krome suspected to be due, at least in part, to its configuration and a strong recommendation that widening and median placement be considered among a range of improvements, a PD&E Study was not commenced. As of the time of hearing a PD&E Study had still not been commenced. Evacuation Route In considering the data related to safety on Krome Avenue, including the Kittelson Report, the Commission considered Krome Avenue's status as an evacuation route. Since the early 1990s, Miami-Dade County has experienced significant population growth along its southern and western fringes, between the Broward County line and the Homestead/Florida City area. This growth is reasonably expected to continue. Because Krome Avenue is one of only three continuous north-south routes in Miami-Dade County, it is important to persons evacuating the City of Homestead and other surrounding areas in southern and western Miami-Dade County and Monroe County. Krome Avenue is an evacuation route not only for hurricanes but also for “all hazards,” such as a meltdown at the Turkey Point Nuclear Power Plan. Nonetheless, it is not designated by Monroe County as part of the official evacuation route. Krome Avenue had been used to evacuate southern Miami- Dade County during Hurricane Andrew. It had also been used to transport relief personnel, vehicles, and supplies in the aftermath of that storm. Given the growth of Miami-Dade County’s population, the other north-south routes, the Florida Turnpike and US 1, would be extremely congested if all of southern and western Miami-Dade County evacuated—much more so if Monroe County evacuated at the same time. Moreover, it is not only people who live in mandatory evacuation zones who evacuate during an emergency: an increasing number of people evacuate voluntarily. Additional capacity on Krome Avenue is necessary to accommodate both mandatory and voluntary evacuees. Miami-Dade County’s Comprehensive Emergency Management Plan, prepared by the Miami-Dade Office of Emergency Management (“OEM”) in October 2000 and adopted by the County Commission, currently designates Krome Avenue as a primary north-south evacuation route for the Florida Keys and south Miami-Dade, in the event of a hurricane or an emergency related to the Turkey Point Nuclear Power Plant. Designated evacuation routes are roads that OEM encourages people to use in an emergency, and they are selected based on recognizability, carrying capacity, and where they end. To maintain consistency between the Emergency Management Plan and the CDMP, the Plan Amendment amends the map of “Designated Evacuation Routes-2015” in the Transportation Element to add Krome Avenue as a “Major Route.” Monroe County’s Director of Growth Management, Timothy McGarry, opined that Krome Avenue was not necessary to accommodate evacuation from Monroe County, because the Florida Turnpike provided adequate capacity. But McGarry based his opinion on the amount of Monroe County’s population that has historically evacuated, which is 50 percent. McGarry would not say that the Florida Turnpike would provide adequate capacity if 100 percent of Monroe County’s population were to evacuate. Moreover, McGarry conceded that, in formulating his opinion, he had not considered what would happen if both Monroe County and southern Miami-Dade County evacuated at the same time. A four-lane Krome Avenue would increase the capacity of Miami-Dade County’s Primary Evacuation Route System and facilitate relief efforts to south Miami-Dade and Monroe County. Moreover, if residents of both Miami-Dade County and Monroe County are evacuated, the additional capacity would allow OEM to direct Miami-Dade residents to Krome Avenue, thus opening the Turnpike and US 1, which provide the only exit routes from the Florida Keys, for residents and tourists evacuating Monroe County. The CDMP and the UDB Miami-Dade County is one of the only counties in the State of Florida to have an “urban development boundary" (UDB.) In the Land Use Element of the Adopted Components of the Year 2000 and 2010 CDMP dated December, 1988, the UDB is described: The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2000 from areas where it should not occur. * * * The CDMP seeks to facilitate the necessary service improvements within the UDB to accommodate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element. Joint Exhibit 56-A, pgs. I-35 and I-36. Thomas Pelham, Miami- Dade County's expert in comprehensive planning, explained the difference between a UDB and an Urban Services Area: The urban service area concept is the local government's designation of the areas in which it . . . will provide urban services. The urban growth boundary is a technique by which a line is drawn beyond which urban development will not be allowed. Tr. 662-3. With regard to the UDB, the parties stipulated, The CDMP currently contains policies to discourage urban sprawl and urban development in areas outside the Urban Development Boundary (the "UDB"), particularly areas designated Agriculture, Open Land, or Environmental Protection. These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas. Pre-hearing Stipulation, p. 14, para. 13. The UDB appears on the CDMP's Adopted 2005 and 2015 Land Use Plan map ("LUP map") as a broken line that on its northern end commences on the border with Broward County. It runs primarily north-to-south along the breadth of developed Miami-Dade County, within several miles of the Everglades and environmentally protected lands, and through the Redland to a point southwest of Florida City and Homestead where it turns sharply east for five to six miles and then heads in a primarily northeast direction around Homestead Regional Airport to meet the coast along Biscayne Bay near Black Point Park. Other counties have at most an “urban service area” or “urban service boundary,” which merely designates the areas in which the government will provide urban services. In contrast to the UDB, an urban service area does not prohibit urban development outside its boundary. A comprehensive plan with an urban services area typically provides only that the landowner, rather than the government, is responsible for providing urban services outside the urban services area. Miami-Dade County had the UDB before the Florida legislature adopted the laws requiring comprehensive plans, in 1985. The UDB thus predates the CDMP, which was adopted in 1988. Neither Chapter 163 nor Rule 9J-5 requires an urban development boundary. In providing a UDB in the CDMP, therefore, Miami-Dade County is making use of a technique to discourage urban sprawl that exceeds the requirements of Chapter 163 and Rule 9J-5. Miami-Dade County has rarely expanded the UDB in areas not designated as Urban Expansion Areas (“UEAs”). In the last 10 years, the UDB has only been expanded once. That amendment, for the Beacon Lakes project, approved an industrial use where rock mining and cement manufacturing had already taken place. All along its path, Krome Avenue is outside (or to the west of) the UDB. The CDMP does not specify any procedures for applications to move the UDB, beyond the requirements applicable to plan amendments generally. Instead, the procedures for moving the UDB are set forth in Section 2-116.1 of the Code of Miami-Dade County Florida (the “County Code”). That section requires an affirmative vote from two-thirds of the total membership of the County Commission. There are no restrictions on how frequently the County Code may be amended. Changes to the County Code may be accomplished by ordinance at any legislative meeting of the County Commission. The entire process can take as little as three months. Changes to the CDMP, by contrast, are subject to more rigorous procedures: applications may only be filed twice a year; they require review by the Regional Planning Council and DCA; they require two public hearings before the Planning Advisory Board; they require two public hearings before the County Commission; and the entire process takes one year. In its “Statement of Legislative Intent,” the CDMP provides: 3. The CDMP is intended to set general guidelines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations. * * * 6. The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities. Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. Pre-Hearing Stipulation, para. 14. The CDMP currently contains substantive policies to discourage urban sprawl and urban development in areas outside the UDB, particularly areas designated Agriculture, Open Land, or Environmental Protection. These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas. Land Use Objective 1 provides: The location and configuration of Miami-Dade County’s urban growth through the year 2015 shall emphasize concentration and intensification of development around centers of activity, development of well designated communities containing a variety of uses, housing types and public services, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl. Pre-Hearing Stipulation, para. 15. Land Use Element Policy 1P provides: Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities. Pre-Hearing Stipulation, para. 16. Land Use Element Policy 1Q provides: While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism related to the area’s agricultural and natural resource base including Everglades and Biscayne National Parks. Pre-Hearing Stipulation, para. 17. Land Use Element Policy 2B provides: Priority in the provision of services and facilities and the allocation of financial resource for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non-urban areas. Pre-Hearing Stipulation, para. 18. Land Use Element Policy 8C provides: Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to promote agriculture as a viable economic use of land in Miami-Dade County. Pre-Hearing Stipulation, para. 19. Land Use Element Policy 8F provides: Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Objective and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at or above adopted LOS Standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; Enhance or degrade environmental or historical resources, features or systems of County significance; and If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period of headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective 7, herein. Pre-Hearing Stipulation, para. 20. Land Use Element Policy 8G provides: The Urban Development Boundary (UDB) should contain developable land having capacity to sustain projected countywide residential demand for a period of 10 years after adoption of the most recent Evaluation and Appraisal Report (EAR) plus a 5-year surplus (a total 15-year Countywide supply beyond the date of the EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy 7F. The adequacy of non-residential land supplies shall be determined on the basis of land supplies in subareas of the County appropriate to the type of use, as well as the Countywide supply within the UDB. The adequacy of land supplies for neighborhood- and community- oriented business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, Minor Statistical Areas (MSAs) and combinations thereof. Tiers, Half-Tiers and combinations thereof shall be considered along with the Countywide supply when evaluating the adequacy of land supplies for regional commercial and industrial activities. Pre-Hearing Stipulation, para. 21. Land Use Element Policy 8H provides: When considering land areas to add to the UDB, after demonstrating that a countywide need exists, The following areas shall not be considered: The Northwest Wellfield Protection Area located west of the Turnpike Extension between Okeechobee Road and NW 25 Street, and the West Wellfield Protection Area west of SW 157 Avenue between SW 8 Street and SW 42 Street; Water Conservation Areas, Biscayne Aquifer Recharge Areas, and Everglades Buffer Areas designated by the South Florida Water Management District; The Redland area south of Eureka Drive; and The following areas shall be avoided: Future Wetlands delineated in the Conservation and Land Use Element; Land designated Agriculture on the Land Use Plan map; Category 1 hurricane evacuation areas east of the Atlantic Coastal Ridge; and The following areas shall be given priority for inclusion, subject to conformance with Policy 8G and the foregoing provision of this policy: Land within Planning Analysis Tiers having the earliest projected supply depletion year; Land contiguous to the UDB; Locations within one mile of a planned urban center or extraordinary transit service; and Locations having projected surplus service capacity where necessary facilities and services can be readily extended. Pre-Hearing Stipulation, para. 22. Interpretation of the LUP Map: Policy of the Land Use Element provides: Urban Development Boundary (p. I-45) The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2005 from areas where it should not occur Adequate countywide development capacity will be maintained within the UDB by increasing development densities or intensities inside the UDB, or by expanding the UDB, when the need for such change is determined to be necessary through the Plan review and amendment process . . . . [U]rban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted only if such roadways are shown on the LUP map and in the Transportation Element. . . . Concepts and Limitations of the Land Use Plan Map: Coordinated-Managed Growth (p. I- 59) [C]ritical in achieving the desired pattern of development is the adherence to the 2005 Urban Development Boundary (UDB) and 2015 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard, the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that the actions of one single- purpose agency does not foster development that could cause other agencies to subsequently respond in kind and provide facilities in unanticipated locations. Such uncoordinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives. Concepts and Limitations of the Land Use Plan Map: Ultimate Development Area (p. I- 64) The 2005 and 2015 Land Use Plan map identified the areas that will be urbanized within those time frames. As indicated throughout this Plan, these are the areas of the County where financial resources should be directed from the maintenance and construction of urban infrastructure and services. Growth of Dade County, however, is not projected to cease after the year 2015. Therefore, prudent long-term planning for infrastructure may need to anticipate locations for possible future extension. For example, it may be desirable to reserve rights-of-way in certain growth corridors as well as on section, half-section, and quarter-section lines, well in advance of need so that opportunities to eventually provide necessary roadways are not irrevocably lost. It is difficult to specify where and how much of Dade County’s total area may ultimately be converted to urban development. . . . It is reasonably safe to assume, however, that the areas least suitable for urban development today will remain least suitable. Theses areas include the remaining high-quality coastal and Everglades wetland areas in the County, and the Northwest Wellfield protection area. The areas more appropriate for, and more likely to experience sustained urban pressure are the heavily impacted, partially drained wetlands in the Biscayne-Snake Creek and Bird-Trail Canal Basins, the agricultural areas of southwestern and southeast Dade, and the impacted wetlands south of Homestead and Florida City. When the need for additional urban expansion is demonstrated after the year 2015, such expansion should be carefully managed to minimize the loss of agricultural land and to maximize the economic life of that valuable industry. Accordingly, urban expansion after the year 2015 in the South Dade area should be managed to progress westerly from the Metrozoo area to Krome Avenue north of Eureka Drive, and on the west side of the US 1 corridor southerly to Homestead only when the clear need is demonstrated. . . . Pre-Hearing Stipulation, para. 23 (emphasis supplied). Of particular import to this proceeding, Policy 4C of the Traffic Circulation Subelement requires avoidance of improvements which encourage development in certain areas. With regard to development in Agriculture and Open Land areas, transportation improvements which encourage development are to be avoided but avoidance is subject to an exception, "those improvements necessary for public safety and which serve the localized needs of these non-urbanized areas." Areas designated Environmental Protection, on the other hand, are to be "particularly avoided." Policy 4C of the Traffic Circulation Subelement provides: Dade County’s priority in the construction, maintenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan map. Second priority in transportation allocations shall support the staged development of the urbanizing portions of the County within the Urban Expansion Area. Transportation improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas. Areas designated Environmental Protection shall be particularly avoided. Pre-Hearing Stipulation, para. 24 (emphasis supplied). Policy 1A of the Water and Sewer Sub-element provides: The area within the Urban Development Boundary of the Land Use Plan map shall have the first priority in providing potable water supply, and sanitary sewage disposal, and for committing financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Land, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health, safety or welfare. Pre-Hearing Stipulation, para. 25. Policy 1H of the Water and Sewer Sub-element provides: New water supply or wastewater collection lines should not be extended to provide service to land within the areas designated Agriculture, Open Land or Environmental Protection on the Land Use Plan map. New water or wastewater lines to serve land within these areas should be approved or required only where the absence of the facility would result in an imminent threat to public health or safety. The use of on- site facilities should be given priority consideration. In all cases, facilities should be sized only to service the area where the imminent threat would exist, to avoid inducing additional urban development in the area. This policy will not preclude federal, State or local long-range planning or design of facilities to serve areas within the Urban Development Boundary (UDB) or Urban Expansion Area (UEA). Public health and safety determinations will be made in accordance with Chapter 24 of the Code of Miami-Dade County (Environmental Protection) and Section 2-103.20, et. seq., (Water Supply for Fire Suppression) Code of Miami-Dade County. Pre-Hearing Stipulation, para. 26. Policy 5A of the Capital Improvements Element provides: As a priority, previously approved development will be properly served prior to new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority for investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs. Pre-Hearing Stipulation, para. 27. The Plan Amendment The Plan Amendment consists of several components grouped as follows: a. changes in Plan designations in the Land Use Element on the LUP map and in the Traffic Circulation Subelement that increase the lanes on a segment of Krome Avenue from 2 lanes to 4 lanes (the "Lane Increase Changes"); b. changes in the Transportation Element's Traffic Circulation Subelement that add Krome Avenue as a Major Route in the Designated Evacuation Routes 2015 (the "Evacuation Route Change"); c. addition of new policies that require among other matters a super-majority of the County Commission for zoning action or amendment to the CDMP that would approve certain uses within one mile of Krome Avenue designated for improvement to four lanes (the "New Super-Majority Policies"); and d. addition of a new policy that requires adoption of a binding access control plan for the Krome Avenue corridor before capacity improvements to Krome Avenue outside the UDB (the "New Binding Access Control Plan Policy"). The parties stipulated to the following narrative description of the Plan Amendment: 31. As part of the October 2002 Plan Amendment, the County Commission approved Application 16. Application 16 made the following changes to the CDMP: Changed the Plan designations of Krome Avenue (SR 997/SW 177 Avenue), between US 27 and SW 296 Street, as follows: In the Land Use Element, on the Land Use Plan map change from Minor Roadway (2 lanes) to Major Roadway (3 or more lanes); and in the Transportation Element, Traffic Circulation Subelement, Figure 1, “Planned Year 2015 Roadway Network”: Change from 2 lanes to 4 lanes. In the Transportation Element, Traffic Circulation Subelement, added Krome Avenue between US 27 and US 1 to Figure 7, Designated Evacuation Routes 2015, as a Major Route. Added the following new Policy 3F to the Land Use Element: Any zoning action or amendment to the CDMP that would approve any use other than direct agricultural production and permitted residential uses of property, in an area designated as Agriculture, whether as a primary use or as an accessory or subordinate use to an agricultural use, or action that would liberalize standards or allowances governing such other uses on land that is a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. The term “direct agricultural production” includes crops, livestock, 15 nurseries, groves, packing houses, and barns but not uses such as houses of worship, schools, sale of produce and other items, and outdoor storage of vehicles. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 3G to the Land Use Element: Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than limestone quarrying, seasonal agriculture or permitted residential use in an area designated as Open Land on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 3H to the Land Use Element: Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than seasonal agricultural use in the Dade-Broward Levee Basin or permitted residential use in an area designated as Environmental Protection, on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 4E to the Traffic Circulation Subelement: Notwithstanding the designation of Krome Avenue as a Major Roadway on the CDMP Land Use Plan Map or as a four-lane roadway in the Traffic Circulation Subelement, no construction associated with the four- laning, or other capacity improvement, of Krome Avenue outside the Urban Development Boundary shall occur until FDOT has prepared, and the Board of County Commissioners has adopted, a detailed binding access control plan for the Krome Avenue corridor. This plan should emphasize access to properties fronting Krome Avenue primarily through alternative street locations. Pre-hearing Stipulation, para. 28. Land Uses Near Krome Avenue North of S.W. 56th Street, the bulk of land uses around Krome Avenue are Environmental Protection and Open Land with almost all of the adjacent land north of US 41 designated Environmental Protection. South of S.W. 56th Street the land is designated as Agriculture and Environmental Protection except for near Homestead and Florida City where the land use designations are Residential Communities (of mostly low density), Business and Office and some Industrial and Office. Krome Avenue currently provides the western boundary of an Urban Expansion Area (UEA) for the year 2015 between what would be an extension of S.W. 42nd Street and an extension of S.W. 112th Street. The CDMP directs that urban infrastructure and services be planned for eventual extension into the UEA, as far west as Krome Avenue, sometime between 2005 and 2015. In addition, the area two miles east of Krome Avenue, between S.W. 12th Street and S.W. 8th Street, is designated as UEA. What the Plan Amendment Does Not Do Of particular import to this proceeding, given the case presented by Petitioners, is what the Plan Amendment does not do. The Krome Avenue Amendment does not change any land uses. It does not alter the existing Conservation Element or any other CDMP policies that protect environmental resources. It does not add Krome Avenue to the Capital Improvements Element or provide funds for or authorize construction on Krome Avenue. Furthermore, any future attempt to change land use in the vicinity of Krome Avenue, if anything, will be more difficult because of the New Supermajority Land Use Policies contained in the Plan Amendment. The New Supermajority Policies work in tandem with the substantive policies to provide the standards for land use changes within one mile of Krome Avenue designated for improvement to four lanes. For example, existing Land Use Policy 8H states that the areas surrounding Krome Avenue, particularly areas west of the road, be avoided or not be considered if Miami-Dade County proposes expanding the UDB. Because the only procedural requirements for moving the UDB are currently contained in the County Code, which may be amended from time to time, adding the Supermajority Requirement to the CDMP with its more rigorous amendment procedures, tends to make it more difficult to change the planning and zoning designations on a property. The Lane Increase Changes There are serious safety problems that rise to the level of literally "life-or-death" on the segment of Krome Avenue subject to the Lane Increase Changes. The Lane Increase Changes do not mandate that the portion of Krome Avenue that they govern be four-laned. They simply allow four-laning if a PD&E Study is conducted by FDOT that determines four-laning is the best way to address the safety issues. While the Lane Increase Changes give a designation to the Changed Segment of Krome Avenue that would allow it to be four-laned, it will not be four-laned until it is determined on the basis of further study in the future that four-laning is the best alternative for improving the Changed Segment. The Lane Increase Changes, without regard to the New Supermajority Policies, are supported by adequate data and analysis. This data and analysis consists of studies and commentaries by FDOT, including the Kittelson Reports and the 1999 Action Plan. The Lane Increase Changes do not authorize construction of improvements to the road. They do not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land." (Tr. 671) It is only actual development that would cause potential urban sprawl that might threaten agriculture or pose a danger to the Everglades. Before any development could take place, additional amendments would have to be made to the CDMP. Those amendments would be subject to the same process as the Plan Amendment has undergone and is now undergoing. In other words, the potential dangers feared by Petitioners could not materialize without adoption of additional plan amendments. Furthermore, the fears held by Petitioners are mitigated by the New Supermajority Policies. DCA Review The entire package of amendments in the second round of 2002 for the CDMP, which included Application 16, is referred to by DCA as "Miami-Dade County 02-2 Proposed Comprehensive Plan Amendments." See Joint Exhibit 11. Initial staff review of Miami-Dade County 02-2 culminated in a August 5, 2002 memorandum (the "Pre-ORC Staff Analysis Memorandum") to the Chief of the Bureau of Comprehensive Planning from a Senior Planner. The staff analysis is summarized in the memorandum: Staff has identified two potential ... objections with the Krome Avenue (FIHS facility) segment[5] amendment concerning internal inconsistency with the CDMP objectives and policies, and lack of supporting data and analysis addressing public safety. Joint Exhibit 11, p. 1. With regard to the "safety" data and analysis, staff wrote, "the amendment is not supported with adequate data and analysis which demonstrates consistency with the CDMP policies which allow for capacity improvements outside the Urban Development Boundary (UDB) only upon showing the amendment is 'necessary' to address public safety." Id., p. 3. The CDMP objectives and policies were summarized as follows: The corridor runs through Agriculture and Open Land use categories. In order to promote the agricultural industry, the CDMP clearly states, under its Agriculture land use category, facilities which support or encourage urban development are not allowed in the amendment area. The subject segment of the roadway currently runs north-south through an extensive area of active farmlands, except the northern portion between US 41 (SW 8th Street) and SW 56th Street which is designated as Open Land in the CDMP's FLUM. The CDMP also states that Open Land designated land, is not simply surplus undeveloped land, but rather land that is Id. intended to serve for production of agriculture, limestone extraction, resource- based activity such as production of potable water supplies or other compatible utility and public facilities or rural residential development at no more than 1 du/5 acres. The amendment area is also a prime candidate for conservation, enhancement of environmental character, and for acquisition by federal, state, regional, county or private institutions that would manage the areas for optimal environmental functions. Beyond SW 8th Street to Okeechobee Road is the environmental and wellfield protection areas through which the upper Krome Avenue runs. One mile west of the segment is the Everglades National Park Expansion Area (Attachment 3) which is authorized by the Congress for federal acquisition. Agriculture is the existing primary use of the corridor area as shown in (Attachment 4). The concern with regard to inconsistency was expressed in this way: Id. Staff is concerned that expansion of Krome Avenue will increase market pressure in the western MSA's within the UDB, resulting in the premature extension of the UDB. Staff concurs with County staff that the widening will cause appraisals to increase property values in the corridor, causing farmers to sell agricultural lands for urbanization. It is also likely that property values will increase on environmental/open lands which should be maintained for water management, resource protection and other functions related to Everglades protection. Within two weeks of the Pre-ORC Staff Analysis Memorandum, DCA issued the ORC Report. In a cover letter, Bureau Chief Charles Gautier wrote the following synopsis of the ORC: The Department is concerned that the widening of Krome Avenue or a segment of it will undermine the County's ability to control urban sprawl and impacts to agriculture and environmental lands. While we share concerns regarding accidents and fatalities on Krome Avenue, we recommend that the County fully evaluate all possible alternatives designs, including implementation of the FDOT 1999 Krome Avenue Action Plan, before considering the four lane option to address public safety. Department staff is available to assist your staff as they formulate the County's responses to the objections and recommendations for the amendment. Joint Exhibit 20, 1st page of the cover letter dated August 16, 2002. Miami-Dade County responded to the ORC Report by clarifying its interpretations of provisions in the CDMP, particularly LUE 2B, and by providing additional data and analysis. Department staff struggled with the response, but ultimately concluded that Miami-Dade County's interpretations were defensible and recommended the Plan Amendment be found in compliance. See Joint Exhibit 16. On December 18, 2002, the Department wrote to Miami- Dade County that it had determined the Plan Amendment to be in compliance. Accordingly, a Notice of Intent to determine the Plan Amendment in compliance was published in the Miami Herald on December 20, 2002. The Petition After the issuance of the notice of intent by the state land planning agency (DCA) to find the Plan Amendment in compliance, this proceeding was initiated by the filing of a petition as allowed by Section 163.3184(9)(a), Florida Statutes. The petition was filed by Sierra Club and John S. Wade and joined by Intervenor, Monroe County. The issues presented by the petition that remain after the parties entered a preheating stipulation filed with DOAH are stated in a section of the stipulation entitled, "D. Issues of Law and Fact That Remain to Litigated." Material Issues of Ultimate Fact While not exhaustive, the parties agree that the following are the major issues of disputed fact: Whether the amendment is consistent with legal provisions concerning the discouragement of urban sprawl. Whether the amendments will have a material impact on the agricultural industry in south Miami-Dade County. Whether the amendments will have a material impact on the restoration of the Everglades. Whether the plan amendments is necessary to address public health and safety and serve localized needs. Issues of Law Whether the Plan Amendment is in compliance. Whether the Plan Amendment maintains the Plan's internal consistency and reflects the plans goals, objectives and policies, per 163.3177(2) Rule 9J-5.005(5)(a)&(b), F.A.C., specifically in regard to: Transportation Element Policy 4C. FLUE Policy 2B. FLUE Policy 8F. Transportation Element(TE) Policy 4C. FLUE Policy 3B. Whether the Plan Amendment is supported by data analysis as required by Sections 163.3177(6)(a), (8), and (10)(e), Fla. Stat. and Rules 9J-5.005(2) and (5), F.A.C. Whether the Plan Amendment is inconsistent with Fla. Admin. Code Rules 9J- 5.006(5)(g)(1)-(10) and (13), and Rules 9J- 5.006(5)(h), (i), and (j)(6), (18), and (19) because it fails to coordinate future land uses with the appropriate topography and soil conditions, and the availability of facilities and services; ensure the protection of natural resources; and discourage the proliferation of urban sprawl. Whether the Plan Amendment is inconsistent with Rule 9J-5.019(3)(d), (f), (i) and 9J-5.019(4). Whether the Plan Amendment is inconsistent with Rule 9J-5.005(6), FAC because it fails to establish meaningful and predictable standards for the use and development of land and fails to provide meaningful guidelines for the content of more detailed land development and use regulations that would prevent the urban sprawl and impacts to agricultural, rural and environmentally sensitive lands caused by the four-laning of Krome Avenue. Whether the Plan Amendment is inconsistent with Sections 163.3177(6)(a)- (g), (8) & (10(e), Fla. Stat. Whether the Plan Amendment is inconsistent with the Strategic Regional Policy Plan of the South Florida Regional Planning Council as a whole, and directly conflicts specifically with: Strategic Regional Goal 2.1 (1) Policy 2.1.4 (2) Policy 2.1.10 (3) Policy 2.1.14 Strategic Regional Policy 2.2.1 Strategic Regional Policy 3.9.1 Whether the Plan Amendment is inconsistent with the State Comprehensive Plan as a whole, including: Goal 15 (a) (LAND USE); Policy 15(b)1; Policy 15(b)6 Goal 16(a) & (b)(URBAN DOWNTOWN REVITALIZATION) Goal 17(a) (PUBLIC FACILITIES); Policy 17(b)1 Goal 19(a); Policy(b)12 Goal 22(a) & (b) (AGRICULTURE) Pre-hearing Stipulation, Section D. The Parties The Sierra Club is a national organization with close to 800,000 members. Qualified to do business in the State of Florida, 30,000 or so of the Sierra Club's members are in its Florida Chapter. About 2800 Sierra Club members live and work in Miami-Dade County where the Miami Group of the Florida Chapter of the Sierra Club holds regular meetings. The Miami Group is a "wholly owned subsidiary . . of the national organization." (Tr. 235) "[A]s opposed to some other organizations which may have separate chapters . . . separately . . . incorporated in their local jurisdictions," the Miami Group, the Florida Chapter and the national organization of the Sierra Club "speak with one voice . . . ." Id. Organized to explore, enjoy and protect particular places around the globe, to practice and promote the responsible use of the earth's ecosystem, to educate and enlist humanity to protect and restore the quality of the natural and human environment and to use all lawful means to carry out these objectives, the Sierra Club has taken numerous actions in support of restoration and preservation of the Everglades. The Sierra Club has been involved on many occasions in growth management issues in different parts of the state. It is particularly concerned about public policy issues that affect Miami-Dade County, including increased urban sprawl, the loss of agricultural lands, clean water, clean air, open space, parks and recreation and the associated loss of quality of life. A substantial number of Sierra Club members use areas surrounding Krome Avenue to recreate and regularly traverse the area on their way to the Everglades, Biscayne National Park, and Florida Keys National Marine Sanctuary as well as using the area for biking, hiking, bird watching, and picking tropical fruits and vegetables. A substantial number of members also regularly use and enjoy Everglades National Park and Florida Bay and use Krome Avenue en route to these destinations. Representation of its members' interests in administrative proceedings to enforce growth management laws is within the corporate purposes of Sierra Club. In keeping with its purposes, the Sierra Club commented to the Board of County Commissioners regarding the Plan Amendment between the time of its transmittal to DCA and its adoption. John S. Wade, Jr., operates an interior foliage or a "container" nursery business at 20925 S.W. 187th Avenue "in the center of the Redlands area," tr. 210, one mile due west of Krome Avenue. Mr. Wade has been extensively involved in county planning issues for many years. A member of the Sierra Club, he is also an individual Petitioner in this proceeding. Mr. Wade commented to the Board of County Commissioners regarding the Plan Amendment between the time of transmittal to DCA and their adoption. Mr. Wade believes that the Plan Amendment affects his interests in that it will have a negative impact on wildlife which he enjoys and on his nursery business. The parties stipulated that Mr. Wade is an "affected person" with standing to bring and maintain this action under Section 163.3184, Florida Statutes. Roads and Land Use: General Impact Chapter 163, Florida Statutes, establishes an important link between planned road infrastructure and future land use decisions. The future transportation map, furthermore, plays a critical role in the future land use pattern of a local government, particularly with regard to roadways. The impact of a road-widening amendment is relevant to land use or environmental policies. There is, moreover, no question that improved or expanded transportation infrastructure does nothing to diminish the potential for development in surrounding areas as a general matter. In general, widening a roadway promotes development in surrounding areas served by the roadway. Growth management laws, therefore, generally discourage the provision of roadway capacity in areas where a local comprehensive plan discourages development. The general principles of the effects of roadway capacity and improvements to roadway infrastructure, including road widening, are also reflected in the State Comprehensive Plan, the Regional Policy Plan, Florida Administrative Code Chapter 9J5, and the CDMP, itself. Petitioners and Monroe County emphasize this point in the following paragraphs of their proposed recommended order now found as fact in this Recommended Order: []. Goal 19(a) of the SCP requires that future transportation improvements aid in the management of growth. Fla. Stat. 187.201(19)(a). []. Policy 19(b)(12) of the SCP requires that transportation improvements in identified environmentally sensitive areas such as wetlands be avoided. Fla. Stat. 187.201 (19)(b)(12). The Regional Policy Plan states that "roadways also aid in attracting development to new areas." Jt. 7@ 36. Rule 9J5 recognizes limits on extending infrastructure as a development control that can inhibit sprawl. Conversely, making improvements or extensions to infra- structure [when considered in isolation] can encourage urban sprawl. Darst V9@ 972. The CDMP's data and analysis contains the following language: Concepts and Limitations of the Land Use Plan Map: Coordinated- Managed Growth (p. I-59) "Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard, the UDB serves as an urban services boundary in addition to a land use boundary.Consistency with the CDMP will ensure that the actions of one single-purpose agency does not foster development that could cause other agencies to subsequently respond in kind and provide facilities in unanticipated locations. Such uncoordinated single- purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives." (Pre- Trial Stip. @ 18) (emphasis added) Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 7. Miami-Dade County, the Department and the City of Homestead do not contend otherwise. In the words of Thomas Pelham, distinguished expert in comprehensive planning whose testimony was presented by Miami-Dade County, the transportation map is "always relevant" (tr. 709) to issues of encouragement and discouragement of urban development. Furthermore, as Miami-Dade County concedes and as Mr. Pelham testified, new roads and improvements in roadway infrastructure "can aid in attracting development in new areas anywhere." Tr. 713 (emphasis supplied). For that basic reason, if a local government adopts a plan amendment that increases roadway capacity and the intent is not to attract development to the area around the roadway, the local government may opt to adopt additional protective policies. For example, in such a situation, the local government could take a clarifying step toward discouragement of urban development in areas served by the roadway planned for improvement: simultaneous adoption of a policy that prohibits consideration of the additional planned capacity of a roadway in subsequent future land use map decisions. Such an additional policy was not adopted as part of the Plan Amendment. In Mr. Pelham's opinion, however, it was not necessary, because of "the strong policies that already exist in the [CDMP]." Tr. 714. These strong policies include, of course, the existence of the UDB, a planning concept associated with Miami-Dade County in a unique manner in the State of Florida due to its strength and the length of existence over time. They also include CDMP policies related to lands designated as "Agriculture" or "Environmental Protection" whose purpose is to preserve and protect. The impact of roads on land use patterns in general, moreover, does not necessarily translate into expected impact in any specific case because of facts peculiarly associated with the specific case. As Mr. Pelham testified, "[t]here is absolutely nothing inconsistent with the four-lane divided highway in rural areas and agricultural areas. We have them all over the country, and in fact, you can identify numerous ones in this state alone." Tr. 676. Three prominent examples in Florida of four-lane divided highways that have not led to development were provided at hearing: Alligator Alley (the segment of Interstate 75 known also as Everglades Parkway) that stretches nearly the width of the Florida Peninsula from Collier County not far from the City of Naples at its western terminus through Big Cypress National Preserve across the boundaries of the Miccosukee Indian Reservation and the Big Cypress Seminole Indian Reservation into Broward County on the east; the Florida Turnpike running from deep in South Florida northward and westerly to Wildwood in Sumter County; and Veteran's Parkway, US 19, from Pasco County to Crystal River "that goes through vast stretches of rural and agricultural lands . . . ." Tr. 677. The construction of these four-lane divided highways have not promoted urban development in lands immediately adjacent to significant sections of these highways. That these highways did not promote urban development flows from their purpose. Their purpose, quite simply, is other than to support urban development. Their purpose is to provide efficient commercial transportation and to be safe for the transportation of people or as expressed at hearing, "to be conduits for people to go from one [point] to another without interruption in an efficient manner." Id. Furthermore, access to these rural, divided four-lane highways is restricted or tightly managed for several reasons. One of the benefits of restricted access is that it discourages urban development. While Miami-Dade County did not adopt a policy that a widened Krome Avenue was not to be taken into consideration in subsequent decisions to amend the future land use map, as Petitioners suggest it could have, New Transportation Policy 4E was added to the Plan Amendment in order to discourage urban development. That policy requires a detailed, binding controlled access plan for the Avenue corridor to be prepared by FDOT and adopted by Miami-Dade County prior to the commencement of any construction associated with four-laning or a capacity improvement. Adoption of such an access control plan will have a deterrent effect on urban development along whatever part of Krome Avenue may at some point in the future be widened to four lanes. The effect of the adoption of a binding access control plan was explained at hearing by Mr. Pelham: It means that most of the traffic on it is not going to be entering or leaving the highway to shop at retail commercial establishments or to go into office parks to work, or to frequent any of the other kinds of urban development that could spring up along the road. It will be a deterrent to anyone who wants to seriously talk about locating a business there because they're going to realize that the public does not have readily easy access to it. [New Transportation Policy 4E] will certainly help insure that [Krome Avenue] remains a primarily rural facility rather than the typical urban highway that's lined with urban development. Tr. 679. From a planning perspective, in addition to being an impediment to urban development, the New Binding Access Control Plan Policy is also a sufficient guideline to discourage urban development. Incorporation of the professional land planning concept of access control makes the policy clear to transportation planners and FDOT and to any party or entity called on to implement the plan especially when the last sentence of the new policy is considered: "[The binding access control plan] should emphasize access to properties fronting Krome Avenue primarily through alternative street locations." This sentence indicates that while access to Krome Avenue is not prohibited, access is to be governed by "a strictly limited access plan," tr. 681, a "strong benefit [of the Plan Amendment] and a strong disincentive or deterrent to urban development." Tr. 679. Urban Sprawl Internal DCA memoranda and the ORC Report reflect a concern by Department staff that the re-designation of Krome Avenue could encourage urban sprawl with serious negative impacts to the Redland and agricultural lands and the Everglades and areas designated to be protected environmentally. The concern of staff is not to be taken lightly. Re- designation of Krome Avenue as a Major Roadway with four-lane capacity will allow parties who seek to develop along Krome Avenue in the future to point to the new "planned" capacity as a factor in support of an amendment to the CDMP that would allow such development. "That's a . . . common argument for why a plan amendment . . . increasing densities in that area . . . [would be] appropriate." Tr. 494. The planned roadway will be more than just fuel for argument. According to Charles Pattison, Petitioners' comprehensive planning expert with significant credentials and experience, the planned capacity increase is without doubt a "key factor," tr. 494-5, for consideration of decision-makers in support of future CDMP amendments that allow urban development. Still, the existing policies that protect agricultural and environmentally sensitive lands, including the UDB and related policies, will also have to be taken into consideration. So will the results of FDOT's PD&E Study and the actual improvement undertaken under the guidance of the study by FDOT, if any, and in whatever form it may take. The policies should not fail to protect agricultural and environmentally protected land merely because of this plan amendment. The policies will not cease to be operative because of the re- designation of Krome Avenue even if FDOT ultimately decides to improve Krome Avenue by widening all or part of it to four lanes. Stated alternatively, in Mr. Pelham's words, existing policies "militate strongly against any urban development ... [outside] the urban growth boundary." Tr. 675. For this reason, among others, Mr. Pelham characterized the concerns of DCA staff and the fears of Petitioners, as "sheer speculation, suspicion and mistrust of . . . government . . . [of] a county that has a strong record of not extending its urban growth boundary." Id. Furthermore, it must be kept in mind what the re- designation of Krome Avenue does and does not do. It does not constitute the ultimate decision or authorization necessary to widen or improve the capacity of Krome Avenue. It does not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land." Tr. 671. It is that development which "would cause potential urban sprawl problems that might threaten agriculture, that, theoretically, might pose a danger to the Everglades." Id. Development of that property would require plan amendments, vulnerable to challenges like this one and subject to scrutiny under the Growth Management Laws, Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J5. Amendment of the CDMP, therefore, to "allow widening of an existing road to address safety or congestion or level of service or evacuation problems, in and of itself, does not pose any of those threats or harms." Tr. 672. Rule 9J5 Urban Sprawl Indicators Urban sprawl is evaluated according to 13 "primary indicators" set forth in Florida Administrative Code Rule 9J- 5.006(5)(g) (the "Primary Indicator Rule.") Applying the Primary Indicator Rule, the Department analyzes first, "within the context of features and characteristics unique to each locality" whether a plan amendment "trips" or "triggers" any of the 13: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in the loss of significant amounts of functional open space. Fla. Admin. Code R. 9J-5.006(5)(g). If a plan amendment trips or triggers one or more of the Primary Indicators, the Department then considers the extent to which the tripped indicators suggest that the amendment does not discourage the proliferation of urban sprawl, or put conversely, induces sprawl. If the Department determines from review of the tripped indicators that the amendment does not discourage urban sprawl proliferation or in induces sprawl, then it turns its attention to the development controls in the comprehensive plan or in the proposed plan amendment. Evaluation of the development controls is made to determine whether they offset the amendment's inducement of urban sprawl. If the inducement is not sufficiently offset by development controls, then, the Department determines the amendment is not: consistent with relevant provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, F.S., and the remainder of [Florida Administrative Code Chapter 9J-5] regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources. Fla. Admin. Code R. 9J-5.006(5)(a). It is possible that if only a few of the 13 Primary Indicators were clearly "tripped" then a determination could be made that a plan amendment "does not discourage the proliferation of urban sprawl." Normally, however, if few primary indicators are tripped, "it's going to be a tough argument to make that [there is] sprawl inducement." Tr. 919. The Department's Position re: Primary Indicators The Department's position is that the Plan Amendment does not trip in any way 10 of the 13 primary indicators listed in the Primary Indicator Rule. The main reason they are not tripped, in its view, is because the amendment, in and of itself, does nothing more than plan for the improvement of Krome Avenue up to a capacity of four lanes. For example, the first primary indicator is whether the plan amendment "[p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need." Fla. Admin. Code R. 9J-5.006(5)(g)1. As Mr. Darst testified, "[T]his is an amendment for the widening of the road and it's not a land use amendment." Tr. 913-4. In and of itself, the amendment does not allow or designate any development. Primary Indicator 4 is not tripped because "premature or poorly planned conversion of rural land to other uses" is not at issue in this case. An analysis of Primary Indicator 5 can only take place "within the context of features and characteristics unique" to Miami-Dade County, including the UDB and the protective policies of the CDMP and the Plan Amendment, itself. Primary Indicators 9 through 13, are not tripped. Primary Indicators 9 through 12 are not relevant to this case. Primary Indicator 13 is not tripped because although small amounts of functional open space might be taken for widening Krome Avenue, the amount would not be significant relative to the amount of functional open space adjacent to Krome Avenue. Of the other three primary indicators tripped in the Department's view by the Plan Amendment, they are tripped only minimally. Primary Indicator 6 is tripped because with Krome Avenue widened "trips shift there from another road," tr. 916, so that maximum use is not made of the other road, an existing public facility. The same is true of Primary Indicator 7, which relates to future public facilities. Primary Indicator 8 is tripped because funds will have to be expended to construct any widening and because of an increase in law enforcement expenses. The involvement of Primary Indicator 8, however, is minimal and without significant impact. Despite the Department's position, the re-designation of Krome Avenue, at a minimum, has at least the potential to "promote" development so as to trip Primary Indicators 1, 2, and As Mr. Pattison testified, the planned increased capacity of Krome Avenue is, by the very nature of increased roadway capacity, a key factor for consideration of proposed amendments that would allow increased development of lands surrounding Krome Avenue. Whether the Plan Amendment is not in compliance for failure to comply with urban sprawl requirements depends on whether the tripped Primary Indicators are offset by development controls. Development Controls Florida Administrative Code Rule 9J-5.006(5)(j, (the "Development Controls Rule") states "[d]evelopment controls in the comprehensive plan may affect the determination in (5)(g) above," that is, whether a plan amendment does or does not discourage the proliferation of urban sprawl. Determination that urban sprawl indicators have been tripped, therefore, is not, standing alone, sufficient to find that a plan amendment fails to discourage urban sprawl. The Development Controls Rule lists 22 types of development controls to be evaluated to determine how they discourage urban sprawl. The CDMP contains development controls to discourage urban sprawl and development in areas designated Agriculture, Open Land or Environmental Protection. They are the UDB, see Florida Administrative Code Rule 9J-5.006(5)(j)21., and the two policies related to it: Land Use Element Policies 8G and 8H. Evaluation of the development controls in the CDMP leads to a determination that the tripped Primary Indicators, Primary Indicators 1, 2, and 3, triggered by the Plan Amendment's potential to promote development that could lead to urban sprawl and Primary Indicators 6, 7 and 8, all "minimally" tripped, are offset by the development controls. Furthermore, the Plan Amendment, itself, contains additional policies that constitute development controls: the New Land Use Policies requiring super-majorities of the Board of County Commission for approval of re-designations near Krome Avenue and the New Binding Access Control Plan Policy. See Fla. Admin. Code R. 9J-5.006(5)(j)15. and 22. Petitioners view the New land Use Policies as inadequate development controls because they do not set forth measurable or predictable standards to govern county commission decisions. Other than to require super-majorities for re- designation of land uses near Krome Avenue ("procedural" standards), the New Land Use Policies do not contain standards that govern county commission decisions. But there are a plethora of standards elsewhere in the CDMP. These other standards have been determined to be meaningful and predictable and there is nothing in the New Land Use Polices that allows the commission to disregard them. New Policy 4E which requires an access control plan prepared by FDOT prior to construction of any capacity improvement to Krome Avenue is viewed by Petitioners as "so vague as to fail to meet the definition of an objective or policy or to provide meaningful or predictable standards." Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 18. But a reading of the policy contradicts the allegation. Meaningful and Predictable Standards Petitioners allege that the Plan Amendment is inconsistent with land use policies requiring coordination with the surrounding environment and requiring meaningful standards for more detailed regulations, and, therefore, that it is inconsistent with Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(6). The CDMP contains meaningful and predictable restrictions on land use in areas designated Agriculture, Open Land and Environmental Protection. The Plan Amendment does nothing to deter those restrictions. Furthermore, among new policies in the Plan Amendment is the addition of procedural safeguards to the substantive criteria, thereby strengthening the existing standards. The Plan Amendment, therefore, retains meaningful and predictable standards for more detailed regulation, and if anything, strengthens the chance for their application to protect lands designated Agriculture, Open Land and Environmental Protection. Increasing Land Values and Speculation Petitioners argue that widening Krome Avenue to four lanes will adversely affect farming in the Redland and the Everglades by increasing land values and speculation. These arguments do not take into account that regardless of improvements to Krome Avenue, most of the area north of 42nd Street has little appeal to developers. Its designation as Environmental Protection makes it difficult if not impossible to develop. Despite extreme development pressure elsewhere in the county, to date there has been little pressure to develop the area due to the success of the comprehensive plan, particularly its policies against development in the area. Asked at hearing about such pressure, Miami Dade County's Director of Planning and Zoning, Diane O'Quinn responded, ". . . I haven't seen it. Not at all . . . because we've got very strong environmental policies in the comp plan." Tr. 625. Furthermore, considerations of increasing values and land speculation are not compliance issues under Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. Were they compliance issues, there are other forces at work that are encouraging an increase in land values in the Redland: in particular, the economics of the agriculture industry and the increasing demand for residential housing throughout Miami-Dade County. Agricultural uses in the County have been declining since Hurricane Andrew in 1992. Up to then, the predominant forms of agriculture had been row crops (tomatoes, for example) and lime, avocado and mango groves. Andrew destroyed many groves. They were not replanted because of expense and the length of time it takes from planting for the groves to bear fruit and increasing competition from foreign producers. Within a year or two of the hurricane, the North American Free Trade Act (NAFTA) was passed and produce from Mexico and Central America was introduced in great volume into U.S. markets. The south of the border competition generated by NAFTA, especially with regard to tomatoes and limes, reduced the value of the type of produce that had been predominant in the Redland prior to Andrew. Ten years later, the University of Florida's Florida Agricultural Market Research Center in the Summary and Recommendations Section of its Miami-Dade County Agricultural Land Retention Study (the "Agricultural Land Retention Study") described the market for agricultural commodities produced in Miami-Dade County as "fiercely competitive," Joint Exhibit 55, p. xiv, because of Latin American produce and predicted, "[e]conomic globalization and trade liberalization will continue. It is unlikely that the U.S. trade policy will be altered to any appreciable degree in the foreseeable future to protect domestic fruit and vegetable industries." Id. at xiii. Testimony at hearing established that these predictions have been accurate through the time of final hearing in late 2005. The Study, completed in April 2002, also reached this conclusion: Population growth and concomitant urban development appear inevitable for Miami-Dade County. Based on the capitalization of relatively low financial returns to agriculture in recent years, especially row crops, only about twenty-five percent of the current land prices is justified by returns to land in agricultural uses. The remaining seventy-five percent represents future anticipated value in non-agricultural or I agricultural residential use. Further, as supply of developable land dwindles, prices will undoubtedly increase. These price increases, if accompanied by chronically low financial returns to agriculture, will motivate landowners to convert to agricultural land to higher-valued uses. Joint Exhibit 55. p. xiii. This observation continued to have validity more than three years later at the final hearing in this case in late 2005. Following Andrew, land prices that had been stagnant for many years at $5,000 per acre or so increased three and four fold. The increases made it relatively expensive to buy land, plant and grow. The combined effects of Andrew and NAFTA reduced row crop and grove produce profitability. The agricultural industry shifted to ornamental horiculture nurseries. At the time of hearing, land prices had risen so much that even the nurseries whose products have been in demand for residential development have begun to become economically infeasible. Soon after 1992, the SFWMD also began buying property for Everglades restoration projects west of a levee on the west side of Krome that runs parallel to the roadway. These purchases too increased land values in the area. The recent rise in prices is also due to the low interest rate environment that began to have a wide-spread effect in early 2000. The low interest rate environment spurred demand for single-family homes. Furthermore, with the stock market decline that commenced in early 2001, investors began shifting from equities to real estate and demand for second homes increased. Miami-Dade County's excellent weather attracts people from all over the world and this has fostered increased foreign investment in the local real estate market. The combination of all these events led to acquisition of land for residential development throughout Miami-Dade County by developers. The diminution in the amount of vacant residential land naturally turned the attention of developers to agricultural areas and to the Redland where density is limited to one hours per five acres. The increased demand for housing led to price escalation so that five-acre parcels in the Redland became relatively inexpensive. The confluence of these factors accelerated the subdivision of agricultural properties into five-acre residential estates in the Redland. This trend began with Krome Avenue as a two-lane road and it is reasonably expected to continue, regardless of whether Krome is improved to four lanes or not. The trend toward development of five-acre residential estates will likely stave off further urbanization of the Redland. As the area is developed at one house per five acres, it becomes difficult to reassemble acreage to create subdivisions of higher density. For properties in the Redland that do not directly abut the road, the price of land is unrelated to Krome Avenue. Rather, it is based on the increasing demand for five-acre estates. The New Land Use Policies will likely restrain speculation based on the re-designation of Krome Avenue. One of the components of value is the probability of rezoning. Often much more important to land values are other factors: the land use plan designation and the history of land use in the surrounding areas. The planning and zoning restrictions, particularly in the light of the New Land Use Policies, send a signal to the market that the area around Krome Avenue is not slated for urbanization. The restrictions thereby limit increase in value and dampen speculation based on the potential widening of Krome Avenue. The trend in converting agricultural lands to residential uses has been in the making in Miami-Dade County for at least 30 years. The interplay between the agricultural and housing markets is the result of far larger forces than whether Krome Avenue is re-designated for improvement up to a divided four-lane roadway making any such re-designation of minor impact. As Mark Quinlivan, an expert in the field of real estate valuation in particular with regard to the areas along the Krome Avenue Corridor and the Redland, summed up the situation at hearing: So the trend is and has been for the last few years . . . to convert [the Redland] to five acre estates. Once they are converted to five acre estates and the homes are actually built, there is really not much else that can be done. Now you can't tear down the house and re-subdivide it if you could rezone. . . . [W]hether you put Krome as two lanes, four lanes, six lanes this trend is way beyond this amendment . . . Tr. 264. Environmental Impacts Although whether Krome Avenue will ever be improved to four lanes north of US 41, most of which crosses lands designated Environmental Protection depends on an environmental evaluation and other factors subject to an FDOT PD&E Study, it must be assumed for purposes of this compliance determination that it is allowed to be four lanes. The same assumption must be made for all of Krome Avenue subject to the Plan Amendment. Were a new plan amendment to be applied for, however, to re- designate land adjacent to Krome Avenue, road capacity would be a "minor" consideration because development control "policies in the plan are very strong and they're much more important and that would override the fact that there happens to be road capacity available." Tr. 737. The County recognizes the importance of maintaining a buffer between urban development and the Everglades. This recognition is reflected in CDMP policies. The CDMP, moreover, attempts to prevent the loss of environmentally sensitive lands. In the 1990's Congress required the U.S. Army Corps of Engineers to develop a plan to reverse as much as possible the anthropogenic damage inflicted upon the Everglades. The result was CERP, a joint federal/state plan to restore the Everglades by completing sixty-eight individual projects by 2038 costing many billions of dollars. Adopted by an Act of Congress in 2000, CERP directs the Corps to restore the Everglades using CERP as a guideline. With the exception of 10 of the projects authorized by the act, each of the other 58 individual CERP projects must undergo a specific process of planning and then Congressional authorization and appropriation. There have been no Congressional authorizations since 2000. The 58 projects not authorized in 2000 still await final planning and design and Congressional authorization and appropriation. Because of a design of Krome Avenue improvement has not been proposed, it is not possible to determine whether the widening of Krome Avenue will physically impact CERP projects. The concern advanced by Petitioners is that improvement to Krome Avenue will not only decrease the availability of land availability to CERP but will also raise land values. The concern is appropriate because, in general, the primary strategy of CERP is the acquisition of privately-owned land to dedicate to water storage, wetland restoration, and other related uses. "Most [CERP] projects have land acquisitions as the single largest factor in their cost." Tr. 415. Escalating real estate costs is a significant issue for CERP project managers attempting to stay within budget. As land acquisition costs increase, it becomes more difficult to get adequate funding or even authorization of a project. Furthermore, the federal authorization law requires a re- authorization by Congress if projected initial costs are exceeded by more than 20 percent. One of the critical aspects of CERP is water storage for which significant amounts of land must be acquired. There are numerous water storage restoration projects planned in the vicinity of Krome Avenue dependent on land acquisition. Petitioners recognize, however, that there is a certain amount of speculation in any anticipation of a rise in land values in the area of Krome Avenue. "If widening Krome Avenue raises the value . . . of surrounding lands it will have an adverse affect on the success of the Everglades restoration project." Petitioners and Intervenor Monroe County's Proposed Recommended Order, para. 95, p. 16 (emphasis supplied). Furthermore, as found already, the rise is dependent on re- designation of lands in the area of Krome Avenue, which are subject to policies in the CDMP, such as the existing Conservation Element, that discourage re-designation in a manner that would stimulate a rise in land values. It is sufficient for the CDMP to have policies that direct development to minimize impacts to environmental resources and guide the more detailed analysis that will be performed pursuant to the PD&E Study and further regulations. As Thomas Pelham explained: The purpose of the comprehensive plan is to establish policies that will be applied to and will govern actual development proposals that come in under the plan. It's not the purpose of a comprehensive plan to do a development permit level analysis. You do that when development permits are applied for . . . until you have . . . a specific proposal for a road, actual alignment, design features, you can't really fully analyze the impacts of it, anyway. . . . [T]he comprehensive plan . . . establish[es]] in advance policies that are reviewed for adequacy for protecting natural resources, the environment, so, that when someone comes in with an actual development proposal, then, it has to be evaluated in terms of the policies in the plan, and if it's not consistent, the law requires that it be denied. Tr. 686-7. The existing Conservation Element and other CDMP policies that protect environmental resources adequately address the potential impacts of the Krome Avenue Amendment vis-à-vis the environment and environmental considerations. South Florida Regional Policy Plan Amendments must be consistent with the Strategic Regional Policy Plan (SRPP) in order to be in compliance. § 163.3184(1)(b), Fla. Stat. SRPP Goal 2.1 is to achieve long-term efficient and sustainable development patterns by guiding new development and redevelopment into area which are most intrinsically suited for development. This includes areas where negative impacts on the natural environment will be minimal and where public facilities/services already exist, are programmed, or on an aggregate basis, can be provided most economically. SRPP Policy 2.1.4 requires development to be directed away from environmentally sensitive areas. Strategic Regional Goal 2.2 is designed to revitalize deteriorating urban areas. SRPP Policy 2.2.1 requires priority for development in blighted areas characterized by underdevelopment/under- employment that are in need of re-development. SRPP Policy 3.9.1 is designed to direct development and uses of land inconsistent with restoration away from Everglades and adjacent natural resources of significance. State Comprehensive Plan Section 187.101(3), Florida Statutes, states the following with regard to the construction of the State Comprehensive Plan: The [state comprehensive] plan shall be construed and applied as a whole, and no specific goal or policy in the plan shall be construed or applied in isolation from the other goals and policies in the plan. Petitioners do not ignore this provision of the statutes, citing to it in their proposed recommended order. See Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 41. Petitioners contend that it is beyond fair debate that the Plan Amendment is inconsistent with the State Plan as a whole and that it is specifically inconsistent with the following provisions in the State Plan: LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies.-- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. 6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water and other natural resources to meet demands; and the potential for flooding. URBAN AND DOWNTOWN REVITALIZATION.-- (a) Goal.--In recognition of the importance of Florida's vital urban centers and of the need to develop and redevelop downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. PUBLIC FACILITIES.-- Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for an finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.-- 1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities. TRANSPORTATION.-- Goal.--Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. 12. Avoid transportation improvements which encourage or subsidize increased development in coastal high-hazard areas or in identified environmentally sensitive areas such as wetlands, floodways, or productive marine areas. AGRICULTURE.-- (a) Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Id. at pgs. 41-43.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the October 2002 Plan Amendment to the Comprehensive Development Master Plan of Miami- Dade County adopted by the Board of County Commissioners for Miami-Dade County as reflected in Ordinance No. 02-198 be determined to be "in compliance." DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2006.
The Issue The issue in this case is whether an amendment to the City of Hallandale's comprehensive plan adopted in Ordinance No. 1999-12 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Mickey Biss, is an individual who resides in Miami, Dade County, Florida. Respondent, City of Hallandale (hereinafter referred to as the "City"), is a municipal corporation located within Broward County, Florida. The City is a political subdivision of the State of Florida. Respondents, Ocean Marine Yacht Club, Inc. and Security Management Corporation (hereinafter collectively referred to as "Ocean Marine"), are corporations organized under the laws of Florida and Maryland, respectively. Intervenor, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Standing. Mr. Biss owns a condominium, unit No. 2109, located at 2030 South Ocean Drive, Hallandale, Broward County, Florida. Mr. Biss' parents reside in the condominium unit. Mr. Biss made oral and written comments to the City during the adoption of the amendment at issue in this case. Ocean Marine and Security Management own parcels of property located at 1935 and 1945 South Ocean Drive, Hallandale, Broward County, Florida (hereinafter referred to as the "Subject Property"). The Subject Property is the subject of the plan amendment at issue in this proceeding. All of the parties proved that they are "affected persons" as those terms are defined in Section 163.3184(1)(a), Florida Statutes. All of the Parties have standing to participate in this proceeding. The City and Its Comprehensive Plan. General The City is located in Broward County, Florida. Broward County is a charter county with county-wide powers over land use planning. The City has adopted the City of Hallandale Comprehensive Plan (hereinafter referred to as the "City's Plan"). The City's Plan has been determined to be "in compliance" as those terms are defined in the Act. The City's Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE") and Future Land Use Maps (hereinafter referred to as the "FLUM"), a Coastal Management Element, a Capital Improvements Element, and other elements required by the Act. Among the land use categories allowed pursuant to the FLUE are residential "High Density" and residential "High Density-2." Residential property designated High Density is subject to a "maximum density of twenty-five (25) dwelling units per net acre." The residential High Density-2 land use category was created by an amendment to the City's Plan adopted by the City on February 5, 1998, through Ordinance No. 1998-3. Residential property designated High Density-2 is subject to a maximum density of 50 dwelling units per net acre. This new land use category was also added to the FLUM. The amendment to the City's Plan to add High Density-2 as a land use category was found to be "in compliance" by the Department. It was also found to be consistent with the Broward County Comprehensive Plan. The High Density-2 land use category is subject to the following limitation: Dwelling units and accessory structures subject to a maximum density of fifty (50) dwelling units per net acre, provided however that any density over 25 dwelling units per net ace may only be permitted by the City Commission on site specific properties by assignment of Flexibility Units in accordance with the Flexibility Rules of the Administrative Rules Document, Broward County Land Use Plan. The High Density-2 land use category of the City's Plan is consistent with the Broward County Comprehensive Plan, which contains a "High (50) Residential" land use category allowing up to 50 dwelling units per acre. The City's Urban Infill Area and Transportation Concurrency Exception Areas The FLUE of the City's Plan establishes an Urban Infill Area in the City. The Urban Infill Area is delineated on the FLUM. The following Objective and Policies concerning the Urban Infill Area are included in the City's Plan: OBJECTIVE 1.17: Establish criteria which encourage development of urban infill and urban redevelopment area(s) to promote economic development, increase housing opportunities, and maximize the use of existing public facilities and services. POLICY 1.17.1: Increase economic development and employment opportunities within urban infill and urban redevelopment area(s). POLICY 1.17.2: Adequate housing opportunities necessary to accommodate all segments of present and future residents shall be provided within urban infill and urban redevelopment area(s). The City's Plan also designates Urban Infill Areas as Transportation Concurrency Exception Areas. FLUE Policy 1.17.4 of the City's Plan provides the following: Designated urban infill and urban redevelopment area(s) shall be excepted from transportation facilities concurrency requirements consistent with Chapter 163, Florida Statutes; however, application will be subject to providing a traffic analysis consistent with the Traffic Circulation Element and potential improvements to minimize impacts. Coastal High Hazard Area The City's Plan includes a Coastal Management Element addressing, among other things, hurricane evacuation from the City's coastal high-hazard area and participation in the development of evacuation plans by Broward County. The FLUE of the City's Plan also includes Policies providing for protection of the City's coastal high-hazard area. The City's Plan, prior to the adoption of the Challenged Amendment, allowed the designation of property located anywhere in the City, including the coastal high-hazard area, as High Density-2. This fact must be considered in interpreting the provisions of the Coastal Management Element and the FLUE of the City's Plan dealing with development within the coastal high hazard area. Flexibility Units. The Broward County Comprehensive Plan (hereinafter referred to as the "County's Plan") includes an Administrative Rules Document. The Administrative Rules Document was adopted to assist local governments, among others, in interpreting the County's Plan. The FLUE of the City's Plan adopts by reference the Administrative Rules Document as they relate to flexibility units. The Future Land Use Maps of the County's Plan divide Broward County into 125 geographic areas designated as "flexibility zones." The number of flexibility units available within each zone is determined by subtracting the number of dwelling units permitted within a flexibility zone by a local government's plan from the number of dwelling units permitted within the same flexibility zone by the County's Plan. Local governments are allowed to, within certain specified limits, rearrange land uses, including residential densities, within flexibility zones located within the local government's jurisdiction. The City is divided into two flexibility zones: Flex Zones Nos. 93 and 94. The FLUE of the City's Plan contains a table on pages 2-28 and 2-32 which sets out the number of flexibility units available in Flex Zone Nos. 93 and 94. The City's Plan allows the use of flexibility units anywhere within either Flex Zone of the City, including areas within the coastal high hazard area. A "Summary" included with the table provides, in pertinent part, that flexibility units may be "assigned to any particular site within the Flexibility Zone to allow for increased residential densities above the amount permitted under the Hallandale Land Use Plan map. . . ." The flexibility units are available for transfer without the need to amend the City's Plan. At the time that the Challenged Amendment was adopted, there were a total of 2,429 flexibility units available within Flex Zone No. 93. The Subject Property. The Subject Property consists of approximately 5.75 acres of land. The parcel of the Subject Property located at 1935 Ocean Drive is vacant. The parcel of the Subject Property located at 1945 Ocean Drive is developed. The developed parcel has an 80-unit motel on it. The motel located on the Subject Property was constructed in 1956. The buildings on the Subject Property are in substantial decay. The Subject Property is surrounded on three sides by property used for high density multi-family residences. The property to the north, Chelsea Hall, has been developed at a density of 54 units per acre. The properties to the east, Malage Towers, Biltmore Mansions, Taromina Apartments, and Hemispheres Ocean, have been developed at densities of 75, 19, 45, and 117 units per acre, respectively. The property to the south, Hemispheres, has been developed at a density of 85 units per acre. Densities in the area surrounding the Subject Property averaged approximately 86 units per acre. The Subject Property lies totally within the City's Urban Infill Area. The Subject Property is, therefore, also considered to be located totally within a Transportation Concurrency Exception Area. The Subject Property also lies within the coastal high-hazard area. The Subject Property is located within the City's Flex Zone No. 93. The Subject Amendment. On June 1, 1999, the City passed Ordinance No. 1999-12, amending the City's Plan by changing the FLUM land use designation for the Subject Property (hereinafter referred to as the "Challenged Amendment"). The Challenged Amendment changed the land use designation of the Subject property from residential High Density to residential High Density-2. The Challenged Amendment was adopted pursuant to the procedures allowed for "small scale" development amendments set forth in Section 163.3187 of the Act. Pursuant to this provision, the City decided that it would elect to have the Department review the Challenged Amendment. The change in land use designation on the Subject Property increased the allowable development of the Subject Property from a maximum of 25 units per acre to a maximum of 50 units per acre through the use of "flexibility units." The Challenged Amendment assigns 143 flexibility units out of the 2,429 available within Flex Zone No. 93 to the Subject Property and specifically provides " . . . the applicant agrees the assignment of 143 Flexibility Units to the parcel is a maximum and agrees the use of density above 25 units per acre will be determined by the City Commission upon review of a future major development plan." Mr. Biss' Challenge. Mr. Biss filed a Petition for Hearing to Challenge Compliance of a Small Scale Development Amendment with the Division of Administrative Hearings. Mr. Biss alleged generally that the Challenged Amendment is not "in compliance" for the following reasons: The Challenged Amendment is not a small scale amendment pursuant to Section 163.3187(1)(c) of the Act because the density of the Subject Property is more than ten units per acre and the Subject Property is not vacant; The Challenged Amendment is contrary to the State Comprehensive Plan. Chapter 187, Florida Statutes (1997). In particular, Mr. Biss alleged that the Challenged Amendment is contrary to Section 187.201(7)(b)22., Florida Statutes (1997), which requires the following: 22. Require local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents. The Challenged Amendment, by increasing densities in the coastal high-hazard area, increases the dangers from hurricanes contrary to Coastal Element Goals 2 and 3, and Objective 2.2 of the City's Plan, and FLUE Policies 1.9.5 and 2.7.2 of the City's Plan; The Challenged Amendment degrades the level of service standard of Hallandale Beach Boulevard contrary to FLUE Element Policy 1.12.4 and Section 9.3.2.1 of the Transportation Element of the City's Plan; There is insufficient data and analysis to demonstrate that the possible additional 143 residential units in the coastal high-hazard zone will not negatively impact the City's ability to evacuate the coastal high-hazard area; and The Challenged Amendment fails to consider the impacts on public schools contrary to the County's Plan. Qualification as a Small Scale Amendment. The Subject Property is located within the Urban Infill Area and a Transportation Concurrency Exception Area. Therefore, the Challenged Amendment may involve a residential use with a density of more than ten units per acre and still qualify as a small scale amendment. Mr. Biss failed to prove that the Challenged Amendment is not a small scale amendment pursuant to Section 163.3187(1)(c) of the Act. I. The State Comprehensive Plan. The City has prepared plans for evacuation of coastal residents as required by Section 187.201(7)(b)22., Florida Statutes (1997). Mr. Biss failed to prove that the requirements of Section 187.201(7)(b)22., Florida Statutes (1997), concerning the preparation of evacuation plans, apply to the Challenged Amendment. Density Increase in the High-Hazard Area; Coastal Management Element Goals 2 and 3, and Objective 2.2 of the City's Plan, and FLUE Policies 1.9.5 and 2.7.2 of the City's Plan. The Coastal Element of the City's Plan includes Goals 2 and 3, and Objective 2.2 pertaining to the City's high hazard area: GOAL 2: The City of Hallandale Shall Protect Human Health and Safety in the Coastal Area. . . . . OBJECTIVE 2.2: The City shall direct populations away from High-Hazard Areas in concert with the established hazard mitigation strategies developed by Broward County . . . . GOAL 3: The City Shall Discourage or Limit Development in Areas Subject to Destruction by Natural Disasters. The evidence failed to prove that the Challenged Amendment is inconsistent with these Goals or the Objective of the Coastal Management Element of the City's Plan. These Goals and the Objective were intended to provide broad planning guidelines and were not intended to apply specifically to a small scale amendment such as the Challenged Amendment. The Goals and the Objective of the Coastal Management Element relied upon by Mr. Biss must be evaluated with other provisions of the City's Plan. In particular, those provisions which allow the transfer of residential dwelling unit densities through flexibility units anywhere within the City, including the coastal high-hazard area. Because of these existing provisions the Challenged Amendment does not increase densities within the coastal high-hazard area or increase the danger from hurricanes anymore than already allowed by the City's Plan. Although not required by Coastal Management Element Goals 2 or 3, or Objective 2.2 of the City's Plan, even a consideration of the impact of the Challenged Amendment on actual hurricane evacuation times does not support Ms. Biss' challenge. The City's projected hurricane evacuation time for roads which would be impacted by increased density on the Subject Property are less than seven hours. The addition of up to 143 dwelling units will not significantly impact that evacuation time. Ongoing road improvements will even mitigate any such impacts. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with the Coastal Management Element of the City's Plan. FLUE Policy 1.9.5 of the City's Plan provides: POLICY 1.9.5: The City shall direct populations away from High-Hazard Areas, to the extent legally feasible, through the establishment of redevelopment regulations for High-Hazard Areas by 1998. The City has complied with this Policy by adopting redevelopment regulations. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with this Policy. FLUE Policy 1.9.3 of the City's Plan provides the following: POLICY 1.9.3: Encourage development and redevelopment in the coastal high hazard area to include hazard mitigation measures for beach and beachfront property protection to minimize loss of life and property against beach erosion. This Policy has no relevance to the Challenged Amendment. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with the Policy. The City's Plan does not include a Policy 2.7.2. The FLUE of the City's Plan includes a "Section 2.7.2" which describes the following "Natural Conditions Affecting Development" as part of the description of the dangers from flooding in the City: The danger from hurricanes can be somewhat controlled by limiting future allowable densities in high hazard areas. This subject is more fully addressed in the Coastal Management and Conservation Elements of the Comprehensive Plan. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with Section 2.7.2 of the City's Plan. Impacts on Traffic. FLUE Element 1.12.4 of the City's Plan establishes a level of service standard "D" for City roads. Section 9.3.2.1 of the Transportation Element of the City's Plan recognizes existing traffic circulation problems within the City, including roads impacted by the Challenged Amendment. This Section is not, however, a goal, objective, or policy of the City's Plan. Mr. Biss has argued that the Challenged Amendment degrades the level of service standard for the City on roads which may be impacted by the Challenged Amendment and further exacerbates the traffic circulation problems recognized by Section 9.3.2.1 of the Transportation Element of the City's Plan. The evidence failed to support this argument. While the addition of 143 dwelling units will naturally increase traffic in the area surrounding the Subject Property, Mr. Biss failed to prove the extent of that impact. More importantly, Mr. Biss failed to prove that the impact will be so great as to be considered inconsistent with the City's Plan. Data and Analysis. Mr. Biss has argued that the City did not have sufficient data and analysis to demonstrate that an additional 143 residential units will not negatively impact the City's ability to evacuate the coastal high hazard area. Mr. Biss failed to prove this allegation. Hurricane evacuation times for roads which may be impacted by the Challenged Amendment are well below acceptable hurricane evacuation time standards. An additional 143 dwelling units will not significantly impact those evacuation times. Data relied upon by the City indicated that, after ongoing road improvements, hurricane evacuation times, even with the Challenged Amendment, will decrease. Mr. Biss failed to prove that the City did not have adequate data and analysis to support the Challenged Amendment. Impacts on Public Schools. Mr. Biss failed to prove that the Challenged Amendment did not consider the impacts on public schools contrary to the County's Plan. The Challenged Amendment is not required to be consistent with County's Plan until it is reviewed for "recertification" by the Broward County Planning Council. At the time of recertification, the Challenged Amendment will likely be considered exempt from school concurrency pursuant to Policy 13.01.10 of the County's Plan. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with any provision of the City's Plan dealing with public schools. Mr. Biss also failed to prove that the impact on public schools by the Challenged Amendment will be more than the addition of nine students. Finally, the evidence failed to prove that the Challenged Amendment is inconsistent with Coastal Management Element Policy 3.1.1 of the City's Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the Challenged Amendment to be a small scale amendment and that it is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ORDERED this 19th day of November, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1999. COPIES FURNISHED: Kent Harrison Robbins, Esquire 1224 Washington Avenue Miami Beach, Florida 33139 Clifford R. Steele, Esquire John C. Hanson, II, Esquire Steele & Hanson, P.A. Museum Tower, Penthouse 150 West Flagler Street Miami, Florida 33130 Barbara Hall, Esquire Greenberg, Taurig, et al 515 East Las Olas Boulevard Suite 1500 Fort Lauderdale, Florida 33301 Richard Kane, City Attorney City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Karen A. Brodeen, Assistant General Counsel Office of the General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Arnold Lanner, Mayor City of Hallandale City Hall 400 South Federal Highway Hallandale, Florida 33009 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue is whether two map changes on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Taylor County (County) by Ordinance Nos. 2009-15 and 2009-17 on December 15, 2009, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The Department is the state planning agency charged with the responsibility of reviewing and approving amendments to comprehensive plans adopted by local governments. The County is a local government that administers a Plan. It adopted the two plan amendments that are the subject of this proceeding. It is considered a "rural" county with a current population of around 20,000 residents. Dr. Hutchins owns property in the County. Although his initial pleading alleges, and his Proposed Recommended Order states, that he "submitted oral comments regarding the subject amendments at transmittal and prior to adoption of the amendment," no evidence was presented at hearing that Dr. Hutchins did so during the adoption process. Ms. Redding and Mr. Wood are siblings and along with three other members of the Wood family jointly own property in the County. Like Dr. Hutchins, no evidence was presented at the hearing that either Intervenor submitted written or oral comments to the County during the adoption process. History Preceding the Amendments The process for adopting the County's first Plan, including the FLUM, began around 1988. For the purpose of drafting a FLUM, a Planning Board (Board) was created consisting of seven individuals, all of whom were volunteers with no formal planning experience. However, they received advice and assistance from two outside consultants, who also advised the County concerning the appropriate text to be used in the new Plan. Four members of the Board, including its former Chairman, testified at the final hearing. Over the next two years, the Board conducted meetings, spoke with numerous property owners, and collected information in order to assign each parcel an appropriate land use category. The collective efforts of the Board culminated in a large, hand- colored FLUM (consisting of numerous sections of aerial maps patched together) that was affixed to the wall of what is now the courtroom on the second floor in the County Courthouse. Testimony by former members of the Board established that the Hutchins parcel (then owned by Colin and Lucille Kelly) and the Bird Island parcel (owned by Wood, Redding, and other family members) were assigned a classification of Mixed Use-Urban Development. Because the County does not have a zoning code, the properties were never assigned a zoning classification consistent with that land use category. This classification was based upon the fact that at least two different businesses were being conducted on each parcel at the time, and the owners requested that they be given that classification. In the case of the Hutchins (then Kelly) property, it was being used to conduct a commercial fishing operation as well as a small construction company (with dump trucks, bulldozers, and front end loaders) that had a contract with Proctor & Gamble (now known as Buckeye Technologies, Inc.) to maintain roads. An office for the construction company was located in a separate mobile home placed on the property. Mr. Bird was a commercial fisherman and operated a wholesale fish business on Bird Island. Also, both he and his mother had separate homes on the property, another structure was used to store fish nets, and docking facilities for other commercial fisherman were maintained. Many of these structures were blown away during the so-called Storm of the Century on March 13, 1993, and never replaced. Except for property within the small communities of Keaton Beach, Dekle Beach, Denzel Beach, and Steinhatchee, and a few other small parcels, such as Dark Island, Cedar Island, and Intervenors' property, all of the remaining land along the coastline was placed in either Conservation or Agriculture. An unusual feature of the County is that it has one of the longest coastlines in the State (58 miles), stretching on the Gulf of Mexico from Jefferson County to Dixie County. Because around 88 percent of the coastline is owned by the State, very little waterfront land is left for development. In fact, Dr. Hutchins pointed out that except for his property and Bird Island, no other vacant, upland Gulf-front property within the County is in private ownership at this time. The FLUM, with the foregoing classifications, was adopted by the County by Ordinance No. 90-4 on June 19, 1990. Before it was submitted to the Department for its review, the County was advised by the Department that it would not accept the large, hand-colored FLUM in that format. Rather, the Department required that the map be reduced in size and digitized. To comply with this request, the original FLUM was dismantled into smaller sections and hand-carried to a firm in Crystal River that had the capability of reducing the large map into digital form. The original FLUM was then returned to the County Courthouse. When the larger map was reduced in size and converted to a digital format, it was not parcel-specific and failed to pick up the Hutchins parcel and Bird Island. Instead, except for larger tracts of land, especially in the small communities noted in Finding of Fact 8, the entire coastline was shown as being Conservation or Agriculture. This error was not detected by County officials or the affected property owners since they continued to rely upon the designations shown on the large, hand-colored FLUM in the Courthouse. The Department reviewed the FLUM, as digitized, assumed that the Hutchins and Bird Island property were Agriculture and Conservation, and found those parts of the FLUM to be in compliance. This agency action occurred on or about October 1, 1990. Thus, the Department never undertook a compliance review for either parcel with the intended higher density/intensity land use. In 1995, the room in which the original FLUM was mounted was taken over by another occupant of the Courthouse, and the original FLUM was moved to a different floor. During or after the moving process, it was lost or accidentally destroyed and its whereabouts have been unknown since that time. In 1993, Dr. Hutchins purchased his property from Colin and Lucille Kelly. Based on a conversation with a County employee, he purchased the property with the understanding that it was classified as Mixed Use-Urban Development. Although he had no specific plans to develop the property at that time, and still has none, the Mixed Use-Urban Development land use category was the major inducement for him to purchase the property. In 2005, Dr. Hutchins was approached by an investor who wished to develop the property at a later time. When the investor contacted the County to confirm its land use designation, Dr. Hutchins learned for the first time that the digitized map approved by the Department reflected the property carried an Agriculture/Rural Residential land use. Because of this, the agreement with the potential investor was never consummated. In a similar vein, Mr. Wood, who served on the Board that assigned land use designations to property on the original FLUM, and knew that the Board had designated his property as Mixed Use-Urban Development, placed the Bird Island property on the market in 2005 representing that it was classified in that category. A prospective purchaser checked with the County to verify its land use and learned that it was Conservation. Mr. Wood was unaware of this error until that time. Because of this, the sale was never consummated. After 2005, the County and Department held numerous meetings in an attempt to resolve this dispute. The Department refused to allow the FLUM to be changed to reflect the original land use designations. This led to the County adopting the two challenged amendments to correct what it characterizes as a "scrivener's error." Besides the two parcels that are in dispute here, on an undisclosed date, two other parcels (in the interior part of the County) were discovered by the County to have the wrong land use category as a result of the digitizing process. Both should have been placed in the Industrial land use category, and after a review, the Department had no objection to those errors being corrected by an amendment. The Plan Amendments On December 15, 2009, the County adopted Ordinance Nos. 2009-15 and 2009-17, also known as CPA 08-1 and CPA 08-3. The first amendment changed the land use on the 14-acre Hutchins parcel from Agriculture/Rural Residential to Mixed Use-Urban Development. The present land use allows one dwelling unit per 5 acres while the new land use designation allows up to 12 dwelling units per acre and a 60 percent impervious surface ratio for nonresidential development. See Department Exhibit 1, Future Land Use Policy I.3.2. Thus, up to 126 residential units and 96,476 square feet of non-residential development could be built on the Hutchins site. The second amendment changed the land use on the 3.36-acre Bird Island parcel from Agriculture-2 and Conservation to Mixed Use-Urban Development. The former land use allows one dwelling unit per 40 acres while the new land use would permit the same density/intensity as the Hutchins parcel. The new category would allow up to 30 residential units and 21,954 square feet of non-residential development. The amendments were transmitted by the County to the Department for its review in early April 2009. On June 5, 2009, the Department issued its Objections, Recommendations and Comments (ORC) report. The Department lodged objections to both amendments generally on the grounds the sites are not environmentally suitable for the proposed density and intensity increases; the amendments authorize an improper increase in density within the Coastal High Hazard Area (CHHA) without proper mitigation; the amendments failed to discourage urban sprawl; and they are internally inconsistent with existing provisions within the Plan. The ORC recommended that the County not adopt the amendments. Besides the Department, DEP and the Regional Planning Council also provided written comments on the amendments. By letter dated May 8, 2009, DEP generally noted that it had concerns regarding development adjacent to the Big Bend Seagrasses Aquatic Preserve (the Preserve) where the parcels are located, and that careful planning strategies should be used for any development on the land. See Department Exhibit 4. The Regional Planning Council issued a staff report on February 25, 2010, generally concluding that the amendments were consistent with the applicable Strategic Regional Policy Plan goals and objectives. See Department Exhibit 15; County Exhibit 1. The County did not respond in writing to the ORC. On December 15, 2009, it adopted the amendments without change. On March 10, 2010, the Department published its Notice of Intent to find the amendments not in compliance in the Taco Times. On March 16, 2010, the Department filed its Petition with DOAH raising the same grounds that are in its Notice of Intent. The Property The Hutchins parcel is located in the southwest part of the County, a few miles south of Keaton Beach, with around 500 to 600 feet fronting on the Gulf of Mexico. The 14 upland acres that are the subject of this case are a sub-site of a larger 25-acre parcel owned by Dr. Hutchins, with the remaining 11 acres being adjoining wetlands on the north and south sides. Dr. Hutchins has built a home on pilings on his property along with a smaller ancillary structure. Photographs indicate that except for trees, the remainder of the upland property is vacant. Bird Island also lies on the Gulf of Mexico just northwest of the Hutchins parcel and is surrounded by water on three sides. Photographs reflect one residence and a dock still on the property. The two parcels are separated by "marsh grass and a little water." Both parcels of property are easily accessible to, and just west of, County Road 361, a paved two- lane highway that begins south of the subject properties and runs adjacent to, or near, the coastline, eventually turning northeast and terminating on U.S. Highway 19 south of Perry. Both properties abut portions of the Gulf of Mexico that have been designated as an Outstanding Florida Water (OFW). The waters are a part of the Preserve, which was established in 1985 and is managed by DEP. The Preserve has exceptional biological, aesthetic, and scientific value. The two parcels are located in the Coastal High Hazard Area (CHHA). That is to say, they are in "the area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model." § 163.3178(2)(h), Fla. Stat. In order to increase density within the CHHA, the County must meet certain criteria set forth in Section 163.3178(9)(a), Florida Statutes. The Department's Objections As summarized in its Proposed Recommended Order, the Department contends that the two plan amendments are not in compliance because the sites are not environmentally suitable for the proposed density and intensity increases; there is an improper increase in density within the CHHA without proper mitigation; and the amendments fail to discourage urban sprawl. Although the Notice of Intent also raised the issue of whether the amendments are internally inconsistent with other provisions in the County's existing Plan, the Proposed Recommended Order does not address any specific internal inconsistencies, and the evidence focuses on the first three concerns. Therefore, the undersigned has assumed that those objections have been withdrawn or abandoned. Environmental Suitability With the exception of an area in the middle part of the County's coastline (where the Fenholloway River flows into the Gulf), the Preserve extends along the County's entire coastline, including the area in which the two parcels are located. The Preserve, designated as an OFW, contains various types of seagrasses, whose function is to provide habitat for a number of species, improve water quality, and reduce currents or wave energy in the event of a storm. It is undisputed that the seagrass beds near the amendment sites are high-quality, healthy, and of high environmental value. Coastal marshes are prevalent in the area of the County where the amendment sites are located. They serve many functions, including cleaning water flowing into The Preserve, functioning as a habitat for a number of species, and acting as a coastal barrier against storm surge during large storm events. Section 163.3177(6)(d), Florida Statutes, requires that local governments protect and conserve natural resources through the conservation element of the local plan. See also Fla. Admin. Code R. 9J-5.006(3)(b)4. A Department rule also requires local governments to limit the specific impacts and cumulative impacts of development or redevelopment upon water quality and living marine resources. See Rule 9J-5.012(3)(c)1. High-density development (up to 12 units per acre) on the parcels clearly has the potential to negatively impact coastal marshes and seagrasses adjacent to and near the subject sites. Although Dr. Hutchins indicated that he would develop his property only to the extent allowed by DEP so that the marshes and seagrasses would be safeguarded, the Department's practice for many years has been to assume that the property will be developed at its maximum allowable density and intensity. See, e.g., Sheridan v. Lee Cty, et al., Case No. 90- 7791 (DOAH Jan. 27, 1992; DCA June 28, 1993; Admin. Comm. Feb. 15, 1994)(compliance determination must be made based on maximum impacts authorized by the amendment terms, not speculation of a lesser impact). Mr. Wood's development intentions are not known. In any event, the two parcels potentially authorize 156 residential units and 113,430 square feet of non-residential uses adjacent to an OFW. Even so, the Mixed Use-Urban Development land use designation may still be permissible if specific conditions limiting the density/intensity on the parcels are incorporated into the Plan by asterisk or text language in conjunction with a new amendment. As noted in the Conclusions of Law, this planning practice has been used in other cases. Without any limitations, though, the preponderance of the evidence supports a finding that the maximum allowable density/intensity contravenes the cited statute and rules. CHHA Both parcels are located within the CHHA of the County. Section 163.3178(2)(h), Florida Statutes, requires that the County establish mitigation criteria for plan amendments located in the CHHA. Probably because of its small size in terms of population, and the lack of development (or ability to do so) along the coastline, the County has no goals, objectives, or policies addressing criteria for mitigation. Rule 9J-5.012(3)(b)6. requires that a plan "direct population concentrations away from known or predicted coastal high-hazard areas." Also, Rule 9J-5.012(3)(b)7. requires that a plan "maintain or reduce evacuation times." Prior to 2006, the Department would allow a local government to comply with the foregoing rules by allowing density increases in the CHHA if the local government decreased a similar type of density elsewhere. This practice was known as "offsets." In 2006, however, the Legislature amended the statute to include criteria for compliance with the two rules. Due to the change in the law, the Department no longer engages in the practice of offsets for land use changes in the CHHA. Instead, it requires a local government that proposes to increase density within the CHHA to meet the requirements of Section 163.3178(9)(a)1.-3., Florida Statutes. Under the statute, if the County can demonstrate a 16-hour out-of-county evacuation time for a category 5 storm event as measured on the Saffir-Simpson scale and a 12-hour evacuation time to shelter within the County for a category 5 storm event, an increase in density within the CHHA may be allowed. See § 163.3178(9)(a)1. and 2., Fla. Stat. Alternatively, the County may use one of the mitigation measures described in Section 163.3178(9)(a)3., Florida Statutes. Except for Coastal Element Objective IX-7 of the Plan, which provides that the County maintain a hurricane evacuation time of 9 hours for a category 1 storm, see County Exhibit 7, no data and analysis, such as a hurricane evacuation study for a category 5 storm event, was presented to demonstrate compliance with these requirements. Dr. Hutchins' submission during the mediation process of an evacuation plan for a category 3 storm does not satisfy this criterion. Typically, a local government will have an adopted plan for a category 5 storm, as well as an evacuation model. The preponderance of the evidence supports a finding that the mitigation measures in Section 163.3178(9)(a), Florida Statutes, have not been satisfied. At hearing, the County and Dr. Hutchins contended that offsets should still be used in this case to satisfy the mitigation requirements. They point out that the County has recently purchased property (totaling 51.7 acres) that is designated Mixed Use-Urban Development and more than compensates for any potential increase of residents needing to evacuate if the two amendments are found to be in compliance. As noted above, however, the practice of offsets was discontinued in 2006 with the passage of the new law. Notwithstanding assertions to the contrary, there was no legal requirement that the Department notify every affected local government and property owner that it was discontinuing that practice to comply with the new law.2 Urban Sprawl Rule 9J-5.006(5)(g)1.-13. identifies thirteen "primary" indicators of urban sprawl. The Department contends that eight indicators are "tripped" or "triggered" by the new amendments and collectively they indicate that the proliferation of urban sprawl is not discouraged. No evidence was presented regarding five indicators. According to the rule, "[t]he presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl." Fla. Admin. Code R. 9J- 5.006(5)(d). Indicator 1 is tripped if the amendments allow uses in excess of demonstrated need. In this case no need analysis for additional land in the Mixed Use-Urban Development category was submitted by the County. The absence of a study is sufficient to trigger this indicator. Indicator 2 is tripped if the amendments allow "significant" amounts of urban development to occur in rural areas at substantial distances from existing urban areas. The only true existing "urban" area in the County, as that term is commonly understood, is the City of Perry. Other residential and some commercial development (but to a much lesser degree) is found mainly in a few small communities on the coastline such as Steinhatchee, an unincorporated community perhaps 15 miles south of the subject parcels with probably around 1,500 residents, and Keaton Beach and Dekle Beach, both having no more than a few hundred residents each. (Official recognition has been taken of the population data.) Keaton Beach is around 2 or 3 miles north of the subject property and has condominiums and other limited residential/commercial development. In addition, Dark Island is located a short distance north of Bird Island and is classified as Mixed Use-Urban Development, which authorizes the higher density/intensity development. Given this lack of "urban areas" in the County, virtually any development outside of Perry could arguably be considered "urban development . . . in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Fla. Admin. Code R. 9J-5.006(5)(g)2. Notwithstanding this unique (and perhaps unfair) situation, it is fair to characterize the potential addition of 12 units per acre as urban development and a total of around 150 residential units with associated commercial development as "substantial" when considering the County's size and existing development. Therefore, the second indicator has been triggered. Indicator 3 is triggered if the amendments allow urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development." Because urban development will occur in a rural, isolated area, this indicator is triggered. Indicator 4 is triggered if there is premature development of rural land that fails to adequately protect and conserve natural resources. The evidence supports a finding that this indicator is triggered. Indicators 6, 7, and 8 are related to the orderly and efficient provision of existing and future public services and facilities. The evidence shows that the area is not currently served by central sewer and is not near any fire or police stations. While no public facilities are planned for that area in the five year capital improvement schedule, at a meeting in March 2010 the Taylor County Coastal Water & Sewer District indicated that a request for partial federal funding to extend central sewer services to Fish Creek, which lies beyond and to the south of the subject parcels, would be placed on the April agenda. See County Exhibit 7. Whether a request was actually made at that meeting is not of record. In any event, Coastal Element Policy IX.6.5 provides that where central sewer is not available in an area classified as Mixed Use-Urban Development, septic tanks may be used within the CHHA. See Department Exhibit 1. As to fire and law enforcement support, there is insufficient evidence to establish that these services cannot be provided in an efficient manner. Given these circumstances, there is less than a preponderance of the evidence to support a finding that indicators 6 through 8 are triggered. Indicator 9 is triggered if the plan amendments fail to provide a clear separation between rural and urban uses. There is insufficient evidence to support a finding that this indicator is triggered. Collectively, the presence of four indicators is sufficient to support a finding that the County has failed to discourage urban sprawl. E. Scrivener's Error The County and Intervenors rely heavily upon the fact that the plan amendments are in compliance because the amendments simply correct an error that occurred when, at the Department's direction in 1990, the original FLUM was reduced in size and digitized. While at first blush this argument is appealing, it assumes that the Department would have approved the new land use classifications in 1990 when it performed a compliance review of the original FLUM. But this never occurred, and the new amendments give the Department its first opportunity to determine if the new land uses are in compliance. It is undisputed that on an undisclosed date the Department approved an amendment based on the same type of error. While the record is somewhat confusing, it appears that in that case, the two properties were Industrial, they were not located in the CHHA, and on-going business concerns were operating on the properties. Intervenor Hutchins also cited several instances where mapping errors were allowed to be corrected by subsequent plan amendments. Where final agency action in those matters is of record, however, it shows that approval was given only after a compliance review was made by the Department.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Plan Amendments CPA 08-1 and CPA 08-3 adopted by Ordinance Nos. 2009-15 and 2009-17 are not in compliance. DONE AND ENTERED this 13th day of December, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2010.
The Issue The issues to be determined in this case are whether the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O-10, and revised in part by the remedial amendments in Ordinance Number 2010-O-01 (“Plan Amendments”), are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review comprehensive plan amendments and to determine whether amendments are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality in Volusia County and has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Hammock Creek is a Delaware limited liability company registered with the State of Florida. It owns the property that is the subject of the Plan Amendments. Through its representatives, Hammock Creek submitted comments to the Edgewater City Council at the transmittal and adoption hearings for the Plan Amendments. Petitioner Richard Burgess resides in the City, owns real property in the City, and operates a business in the City. At the public hearings on the original amendment package adopted by Ordinance No. 2008-O-10, Petitioner made comments on behalf of Edgewater Citizens Alliance for Responsible Development, Inc. (ECARD), as its vice-president. ECARD was an intervenor in this proceeding, but voluntarily dismissed its petition before the final hearing. Petitioner submitted written comments on his own behalf at the adoption hearing for the remedial amendments adopted by Ordinance No. 2010-O-01. The Plan Amendments The Plan Amendments create a new land use category, the Restoration Sustainable Community Development District (“Restoration SCD”), which is described in a new Restoration SCD Sub-Element of the FLUE: The Restoration SCD is the result of a conscious planning approach based on the most current New Urbanist research and advanced practices. The compact development pattern is designed to and shall provide for a diverse community with distinct place types and multiple experiences that are appealing to residents, employees, and visitors. It shall provide for walkability, a broad range of inclusive household demographics, the ability to connect the community directly to a natural experience, transit ready design, and a high level of environmental stewardship and planning. * * * In order to facilitate this vision, the City shall recognize that density is important to the restoration SCD outcome, but no more important than the mixing of uses, the development of a diverse population through the provision of housing choice and employment centers, the connection of streets and the design of structures and spaces on a human scale. The Restoration SCD land use category applies to 5,187 acres of land on the west side of Interstate 95 that are owned by Hammock Creek. The Restoration SCD site is not currently being used, but in the past was used for silviculture. The Restoration SCD site was annexed into the City in 2005, but is being assigned a future land use designation for the first time. The Volusia County land use categories for the property are Environmental Systems Corridor, which allows a maximum residential density of one unit per 25 acres, and Forestry Resource, which allows a maximum residential density of one unit per 20 acres, or up to one unit per five acres with clustering. The Restoration SCD Sub-Element includes the Restoration SCD Conservation/Development Areas Map, which divides the site into three areas: Conservation, SCD Conservation/Restoration, and SCD Community Development. The SCD Community Development area is also referred to as the “Build Envelope” because it is the only area where development can occur. The Build Envelope is approximately 25 percent of the total land area. At least 50 percent of the Restoration SCD site is required to be permanently protected open space. The SCD District is integrally related to a Development of Regional Impact (DRI) proposed for the lands that are the subject of the Plan Amendments. The Resolution SCD includes several of the development controls listed in Florida Administrative Code Rule 9J- 5.006(5)(j) which discourage urban sprawl, including: open space requirements; clustering; the establishment of minimum development density and intensity; phasing of urban land use types, densities, and intensities; traditional neighborhood development form; buffering; planned unit development requirements; restriction of the expansion of the urban area; and jobs-to-housing balance requirements. Edgewater is a relatively old Florida City that was developed with strip commercial along the highway and other development forms that were typical before the enactment of Chapter 163 and the requirement for comprehensive planning. The Restoration SCD introduces modern development principles and forms. Within each element of the City’s Comprehensive Plan, there are data and analysis summaries. There is also a separate section entitled “Population Projections.” The Plan Amendments revise or add information to some of these data and analysis summaries. The Plan Amendments also include some “housekeeping” changes that delete obsolete portions of the Comprehensive Plan and extend several planning horizons in the plan from 2010 to 2020. Mixed Uses Petitioner contends that the Restoration SCD lacks adequate policies to implement the types of land uses allowed, the percentage distribution among the mixed uses, or other objective measurement, and the density or intensity of each use as required by Rule 9J-5.006(4)(c). Restoration SCD is the future land use designation for the entire site. Policy 3.1.1 describes seven subcategories of uses within Restoration SCD: Residential, Mixed-Use Town Center, Work Place, Transit-Ready Corridor, Utility Infrastructure Site, Schools, and Open Space. Various policies of the Restoration SCD Sub-Element establish minimum and maximum percentages for the subcategories of uses. Table I-4 in the Plan Amendments shows the various land uses, their densities and intensities, and their acreages. The Restoration SCD land use designation has an overall residential density cap of 8,500 residential units and a non-residential intensity cap of 3,300,000 square feet. Policy 7.1.1 ensures a continuing balance of residential and non-residential development by tying the number of residential building permits that can be issued to the square footage of non-residential development that has been constructed. For example, residential units cannot exceed 1,500 until 180,000 square feet of non-residential uses have been constructed. Format Petitioner contends that the Plan Amendments are not consistent with the format requirements of Rule 9J-5.005(1) because the sources, dates, and other information associated with tables, figures, and other materials included in the Plan Amendments are not identified. Exhibit A to the new Restoration SCD Sub-Element does not show a source, preparation date or name of the preparer. FLUE Table I-3 shows a source and name of the preparer, but not a preparation date. FLUE Table I-4 shows a source, a preparation date, and name of the preparer. Within the Population Projections section of the Comprehensive Plan, Table P-1 shows a source, but not a preparation date or name of the preparer. Table P-2, Figures P-1 and P-2, and Tables P-3 through P-5 do not show sources, preparation dates, or names of the preparers. Tables P-6 and P-7 show sources and names of the preparers, but no preparation dates. Table P-9 does not show a source, preparation date, or name of the preparer. Within the Housing Element, Tables III-13 through III- 15 and Tables III-17 through III-20 show sources and names of the preparers, but no preparation dates. The tables and figures that Petitioner objects to are included in the Comprehensive Plan as supporting data and analysis. They are not parts of goals, objectives, or policies. Rule 9J-5.005(2)(e) requires that maps include major natural and man-made geographic features and city and county boundaries. The Resolution SCD Conservation/Development Areas Map does not show geographic features or government boundaries. There are other maps in the FLUE that show natural and man-made geographic features and city and county boundaries. Policies 1.1.1 and 3.1.1 refer to Map “H”, which is part of the DRI Development Order. Petitioner objects to the omission of Map “H” from the Comprehensive Plan. The Director of the Department’s Division of Community Planning stated that it is not the practice of the Department to treat a format error or omission as requiring a determination that a plan amendment is not in compliance. Adoption by Reference Petitioner contends that the Plan Amendments adopt regulations and other materials by reference, but not in accordance with Rule 9J-5.005(2)(g), which requires that the reference “identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted.” Petitioner asserts that the following provisions include inadequate adoptions by reference: Policy 1.1.1, Policy 3.1.1, Objective 4.1, Policy 4.1.3, Policy 4.1.7, Policy 4.1.11, Goal 5, Policy 6.1.1, Policy 8.1.4, Policy 9.1.1, Policy 10.1.1, Policy 11.1.1, Policy 11.1.4, and Policy 12.1.6. Policies 1.1.1 and 3.1.1, Objective 4.1, and Policies 4.1, 4.1.3, 4.1.7, and 4.1.11 refer to state, regional, and federal laws or regulatory programs, but they do not purport to adopt these laws and programs by reference. The purpose of these provisions is not for the City to apply or have any role in the regulatory process or decision-making associated with the referenced laws and programs. The wording of these provisions is consistent with the City’s assertion that its intent is merely to provide notice of related permitting programs with which the developer will have to comply. Goal 5 refers to New Urbanism and other land use design principles as described in the literature of the Congress of New Urbanism, the Urban Land Institute and similar organizations, but the goal does not purport to adopt this literature by reference. The goal states that design policies will be adopted by the City in the future. No specific design principles are adopted, by reference or otherwise, in Goal 5. Policy 6.1.1 refers to affordable housing and defines the term as a percentage of Volusia County’s Average Median Income. The policy does not purport to adopt any materials by reference. Policies 8.1.4 and 11.1.1 refer to design principles which are to be adopted in the future. The policy does not purport to adopt this literature by reference. No specific design principles are adopted, by reference or otherwise, in Policies 8.1.4 or 11.1.1. Policy 9.1.1 addresses school concurrency and refers to a Capacity Enhancement Agreement (“CEA”) entered into by the City, the developer, and the Volusia County School Board to ensure that schools are timely planned and constructed to serve the student population. The policy does not purport to adopt the CEA by reference. Petitioner did not show that the CEA is not self-executing. Policy 10.1.1 refers to “green” development practices that meet the certification programs of the United States Green Building Coalition or the Florida Green Building Code, which will be incorporated into the DRI Development Order. The policy does not purport to adopt these certification programs by reference. No specific green design practices are adopted, by reference or otherwise, in Policy 10.1.1. Policy 11.1.4 refers to vehicle trips as calculated by the Institute of Transportation Engineers Trip Generation Manual. This is the standard manual used by all traffic engineers. The policy does not purport to adopt the manual by reference. Planning Timeframes Petitioner contends that the Plan Amendments cause the Comprehensive Plan to be internally inconsistent because there are different planning horizons in the Plan. The Plan Amendments extend several planning horizons to 2020, but the planning horizon in the Recreation and Open Space Element remains 2010, the water supply work plan has a planning horizon of 2018, and the Public School Facilities Element has a planning horizon of 2025. Petitioner did not identify an adverse effect created by the different planning horizons. The City is currently preparing its Evaluation and Appraisal Report (EAR)-based amendments. The EAR process is statutorily mandated, periodic review and update of the entire Comprehensive Plan. It is the logical process for reviewing and revising planning horizons in the plan. Conservation Element and Housing Element Data Petitioner contends that the support documentation that is included as part of the Conservation Element is not the best available data. However, Petitioner did not produce better data, except for the Florida Fish and Wildlife Conservation Commission’s more recent listed species rules, or show how better data do not support the Plan Amendments. Similarly, Petitioner contends that some of the support documentation that is included as part of the Housing Element is not the best available data. Petitioner did not produce better data or show how better data do not support the Plan Amendments. Need Petitioner contends that the best available data do not show a need for the residential and nonresidential land uses allowed by the Plan Amendments. The Population Projections section in the Comprehensive shows a projected City population of 34,481 by 2020. The Department determined that the 2020 population forecast was reasonable. It is not the practice of the Department to require local governments to update their population projections every time an amendment is adopted. The 2020 population projection is derived from forecasts of the University of Florida’s Bureau of Business and Economic Research BEBR. BEBR forecasts county populations, from which city population projections must be extrapolated. BEBR frequently under-forecasts population growth for cities. BEBR forecasts do not account for localized factors that can change the attractiveness of a particular area to prospective new residents and, therefore, stimulate population growth. Applying an “allocation factor,” the Department determined that the number of residential units allowed by the Plan Amendments was reasonably in line with the 2020 forecast. An allocation factor is a multiplier applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. In addition, population projections are not the sole consideration in determining the need for a plan amendment. In the case of the Restoration SCD, higher densities and intensities are necessary as a part of the intended development form. Higher densities and intensities are also necessary to achieve the objectives of Section 163.3177, Florida Statutes, including the encouragement of transit-oriented and energy-efficient communities. A need analysis for non-residential land uses in the Resolution SCD was not conducted by the City because the non- residential uses are intended to serve and be integrated with the residential uses, and are required to be developed in pace with the residential development. The Department found this approach acceptable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding that the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O- 10 and revised by Ordinance Number 2010-O-01, are “in compliance.” DONE AND ENTERED this 27th day of July, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2010.
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
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
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 Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th 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 14th day of May, 2004.
Findings Of Fact The Parties Petitioner Kathleen Burson owns property and resides at 2950 Knox McRae Drive in Titusville. Her residence is located near the land affected by the FLUM amendment. Petitioner submitted comments and objections regarding the amendment to the Titusville City Commission. The City of Titusville is a municipality of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Intervenor Ravi Shah was the applicant for the comprehensive plan amendment and a companion zoning change. He signed a contract to purchase the property affected by the amendment. At the time of the hearing, the contract's expiration date had passed. However, Intervenor is pursuing mediation under the terms of the contract to contest and prevent the termination of his right to purchase the property. The Amendment The amendment changes the FLUM designations for a portion of a 18.17-acre parcel of land ("the property") located at the intersection of State Road 405 (South Street) and Fox Lake Road. The amendment was formally approved by Ordinance 72- 2007, issued by the City on December 11, 2007, and was designated Small Scale Amendment 15-2007. The property had two FLUM designations before the amendment, Residential High Density and Conservation. The amendment changes a portion of the Residential High Density area to Conservation. It changes an area formerly designated Residential High Density and Conservation to Commercial Low Intensity. It changes an area formerly designated Conservation to Residential Low Density. Respondent's Exhibit 10 and Petitioner's Exhibit 50, respectively, depict the "before" and "after" land use designations. Concurrent with the comprehensive plan amendment, the City approved a rezoning of the property. Petitioner and the City presented evidence related to the rezoning and to Intervenor's proposed development of a drug store and other retail shops on that portion of the property now designated Commercial Low Intensity. However, most of this evidence was irrelevant to the issue of whether the comprehensive plan amendment is "in compliance." The Property and Surrounding Land Uses The property is currently vacant. A wetland covers 3.71 acres in the southern portion of the property. The boundaries of the wetland were used to define the area designated Conservation by the amendment. It was the City's intent for the amendment to place in the Conservation designation on any part of the wetland that was not previously designated Conservation and to remove from the Conservation designation any land that was not part of the wetland. The upland portion of the property is used by wildlife, but it is not known to be used by any threatened or endangered wildlife species other than the gopher tortoise, which is a threatened species. Several gopher tortoise burrows were found and at least one burrow was "active." Petitioner claims that the amendment would destroy the rural character of the area. The City disputed that the area has much rural character. The property is bounded on the west by South Street, which is an arterial road. The land across South Street to the west includes commercial and industrial uses. The land on the northwest corner of the intersection of South Street and Fox Lake Road is designated Commercial Low Intensity and the City has approved a gas station/convenience store for the site. The property is bounded on the north partly by Fox Lake Road, a collector road, and partly by a small parcel which is designated Residential High Density. This small parcel has existing dwellings and has non-conforming density. Across Fox Lake Road to the north is land which is designated Residential High Density. To the east of the property, between the property and the neighborhood where Petitioner resides, is land which is designated Residential Low Density and is zoned for single- family homes on lots of at least one acre. Petitioner's neighborhood comprises 14 homes on lots that generally range in size from one acre to 4.5 acres, with one 10-acre lot. No other homeowners in Petitioner's neighborhood challenged the amendment, even those persons who live closer to the property than Petitioner. The southern border of the property is bounded by Commercial High Intensity, Conservation, and Educational land uses. The Education designation covers the site of Apollo Elementary School. The property has access to urban services, including public utilities. The land uses designations created by the amendment are compatible with the surrounding land uses. More specifically, the Commercial Low Intensity designation is compatible with Petitioner's neighborhood because the neighborhood is separated from the commercial use by almost 300 feet, with other residential land uses between. The Conservation Designation Petitioner's challenge to the amendment focuses primarily on the change in the area previously designated Conservation. She contends that the area should remain Conservation because she relied on the designation, and the former Conservation designation protects upland wildlife. When it adopted its first comprehensive plan in 1988, the City designated Conservation areas on the FLUM to correspond with wetlands as depicted on a 1988 National Wetland Inventory map prepared for the U.S. Fish and Wildlife Service. From time to time since 1988, the City has modified the boundaries of Conservation areas depicted on the FLUM when, in the process of reviewing land development proposals, the City has received more current and detailed information about the boundaries of particular wetlands. Petitioner claims that it is wrong for the City to use wetlands, alone, as a basis for designating Conservation areas. She cites statements made by the City in 1988 as evidence that the City intended for the Conservation designation to cover some upland areas as well as wetlands. Goal 1, Objective 6, Policy 3 in the Conservation Element states that "at a minimum," the 1988 Wetland Inventory Map will be used to define Conservation areas. Policy 3 allows the City to designate Conservation areas to correspond only with wetlands, and that has been the City's consistent practice. It is reasonable for the City to continue that practice in the adoption of the amendment at issue in this case. The amendment is consistent with this policy. Protection of the Wetland's Functional Values Petitioner contends that the amendment is inconsistent with comprehensive plan policies and with Florida Administrative Code 9J-5.013(3), related to protecting the functional values of wetlands. Petitioner did not present competent evidence that any functional values of the wetland on the property would be adversely affected by the amendment, but she does not think an adequate functional value assessment was done for the wetland. Goal 1, Objective 6 of the Conservation Element is to "encourage preservation/protection of wetlands according to their function." Policy 1, Strategy 1 states that "The protection of wetlands shall be determined by the functional value of the wetland." Other related policies and strategies in the Conservation Element indicate that this objective is to be accomplished in part through land development regulations. For example, Policy 3, Strategy 6 states that "Mitigation for unavoidable impacts to wetlands which possess significant functional value, as determined by a functional value assessment, will be addressed in the land development regulations." Florida Administrative Code 9J-5.013(3)(a) states: Wetlands and the natural functions of wetlands shall be protected and conserved. The adequate and appropriate protection and conservation of wetlands shall be accomplished through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands, and which is based on supporting data and analysis. The City interprets its comprehensive plan policies as satisfied if wetland impacts are avoided. The wetland analysis conducted for the amendment at issue in this case was adequate because the entire wetland is included in the Conservation designation and, therefore, appropriate planning level protection is provided for the wetland. The adjacent Commercial Low Intensity designation, standing alone, does not mean that adverse impacts to the wetland will occur. Intervenor's proposed development, for example, provides a buffer from the wetland and does not propose to have an impact to the wetland. The City's interpretation and application of the comprehensive plan objectives and policies related to protecting wetland functional values was not shown to be unreasonable. The amendment was not shown to be inconsistent with the comprehensive plan nor with Florida Administrative Code Rule 9J- 5.013(3)(a). Compatibility Petitioner contends that the amendment also violates Florida Administrative Code Rule 9J-5.013(3)(b) because it directs incompatible land uses into wetlands. The amendment places all of the wetlands on the property under the Conservation land use designation. Neither the Residential Low Density designation nor the Commercial Low Intensity designation is placed in the wetlands. The amendment eliminates an incompatible Residential High Density designation that was formerly in the wetlands. Petitioner failed to show that the amendment directs incompatible uses into the wetlands. Petitioner contends the amendment is inconsistent with Objective 1.13 and Policy 1.13.1 of the Future Land Use Element (FLUE), which require compatibility with "environmentally sensitive areas;" and Policy 1.6.1 which requires elimination or minimization of negative impacts to environmentally sensitive areas caused by commercial land uses. "Environmentally sensitive areas" are not defined in the comprehensive plan, but discussed in the Conservation Element are (1) habitat for threatened and endangered species, (2) important natural resources, (3) critical habitat, and (4) streams, lakes, rivers, estuaries, and wetlands. The types of "environmentally sensitive areas" on the property are wetlands and habitat for a threatened species, the gopher tortoise. As found above, the amendment does not direct commercial uses into the wetlands. Petitioner did not show where the gopher tortoise habitat is located on the property but claims that Intervenor’s proposed commercial project fails to protect that habitat. The property has not been designated as critical habitat for the gopher tortoise. In fact, no critical habitat has been designated in Florida for the gopher tortoise because there are many areas in the state that provide suitable habitat for this species. In Florida, it is common for land developers to seek and obtain approval from state and federal regulatory agencies to remove and relocate gopher tortoises to other areas which have suitable gopher tortoise habitat. Developers also have the option to build near the burrows as long as they are not disturbed. Goal 1, Objectives 1 and 2, Policy 3 of the Conservation Element states that "any public or private use of land greater than three (3) acres in area shall require a management plan designed to minimize harm to the species and its habitat.” Such a management plan, however, would be submitted as part of a re-zoning or development proposal and, therefore, the adequacy of any management plan submitted by the Intervenor in this case is not a relevant inquiry. Petitioner argues that the relocation of the gopher tortoises to other suitable habitat would not be consistent with the comprehensive plan's policy to protect habitat. For threatened and endangered species ("listed species") other than the gopher tortoise, relocation might be impracticable or inappropriate, and, therefore, inconsistent with the comprehensive plan. However, for gopher tortoises, their relocation is often determined to be practicable and appropriate, and it has been the practice of the City and of the state and federal regulatory agencies to allow their relocation. There is no policy in the comprehensive plan that clearly requires gopher tortoises and their habitat to be managed differently in Titusville than in other areas of the state. A local government's future land use designation has no effect on the regulation and protection of listed species, including gopher tortoises, afforded under state and federal law. Any land use, including a single-family residence, has the potential to disturb the habitat of gopher tortoises. Although Petitioner is correct in her view that the Conservation designation is more likely to avoid habitat disturbances and the need to re-locate gopher tortoises on the property than the Commercial Low Intensity designation, that factor, standing alone, does not require a finding that the amendment is not in compliance. Restricting Development Petitioner contends that the amendment is inconsistent with FLUE Policy 1.6.1 E because the City did not impose conditions regarding hours of operation, visual impacts, and privacy factors on the Intervenor's proposed development in the Commercial Low Intensity area. This policy only requires that such matters be considered. The City approved the concurrent rezoning of property with a condition that a six-foot wooden fence be placed along the boundary between the commercial project and the adjacent residential area. The City also required Intervenor to place the wetland under a conservation easement, to provide a buffer zone around the wetland, and to prepare and submit a gopher tortoise management plan prior to development of the property. Petitioner failed to show that controls were not considered by the City or that the amendment is incompatible due to the lack of adequate controls. Road Access Petitioner contends the amendment is inconsistent with FLUE Policy 1.6.1 A, which states that sites for commercial development at collector/arterial intersections are appropriate "provided minimal access is necessary on the collector street." The site plan for the proposed commercial development shows a primary entrance on South Street, an arterial road. A secondary, side entrance is on the collector street, Fox Lake Road. Petitioner failed to show how the amendment was inconsistent with Policy 1.6.1 A. Open Space and Recreation Zoning Petitioner contends the amendment violates the City's land development regulations (LDRs) because the LDRs place an Open Space and Recreation (OR) zoning classification on all Conservation lands on the FLUM, and describe OR as a "permanent" classification. This argument is not persuasive, because the characterization of the OR zoning classification as "permanent" in the LDRs is merely to distinguish OR from certain other classifications which are used as "holding" or temporary classifications. The word "permanent" in this context merely means that the OR classification is treated the same way as normal zoning classifications, which are "permanent" unless there is a re- zoning by the City. The City has modified or eliminated OR districts many times in conjunction with updated wetland delineations. Market Analysis Petitioner contends the amendment in inconsistent with FLUE Policy 1.6.1 I because a market analysis was not conducted. The policy states: Commercial land use shall be limited to those areas designated as commercial or mixed use on the Future Land Use Map except as may be permitted by the Planned Development Regulations. Requests to increase and/or convey commercial land rights to an alternate site must be accompanied by adequate analysis to prove necessity for such request. The applicability of this policy was not shown. The first sentence of the policy appears to be self-evident; limiting commercial uses to land designated for commercial uses. The meaning of “Planned Development Regulations” was not explained. Perhaps it is a typographical error and was intended to refer to “Land Development Regulations.” The meaning intended for the term “commercial land rights” was not explained, nor was it explained how this amendment involves a request to increase or convey commercial land rights to an “alternate” site. A market analysis is more typically associated with a specific development proposal, because that allows the analysis to be focused on a particular service or product. Petitioner argues that the policy requires a market analysis for any FLUM amendment that creates a new commercial land use designation. If she is correct, the market analysis would necessarily be a more general one. The City conducted a general market analysis and determined that the residential development in the surrounding area provided a market for a commercial use on the property. That is a reasonable conclusion. If FLUE Policy 1.6.1 I is applicable to this amendment, the amendment is consistent with the policy. Archaeological Resources Petitioner amended her petition to allege that the amendment was improper because it was incompatible with the protection of an Indian mound on the property. However, no admissible evidence was presented to show that an Indian mound exists on the property, where it is located, or how the amendment would cause it to be disturbed. As with listed species, a local government's land use designations have no effect on the state regulation and protection of archaeological resources.
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 amendment is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 20th day of June, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2008.
