The Issue The issue is whether the Petition to Amend the Boundaries of the Crossings at Fleming Island Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2007)1, and Florida Administrative Code Rule Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue The issue in this case is whether a development order (Resolution No. 233- 1991) issued by Monroe County on June 26, 1991, to Key Largo Associates, Ltd., is inconsistent with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and Land Use Regulations, and/or whether it violates a Joint Stipulation of Settlement previously executed by the Department of Community Affairs ("DCA"), Monroe County (the "County"), and Key Largo Associates, Ltd.'s predecessor in title.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the State Land Planning Agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. The County issued the Development Order which is the subject of this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical Concern as designated in Sections 380.05 and 380.0552, Florida Statutes. Development orders issued by a local government agency for an area of critical state concern are subject to review by DCA pursuant to Section 380.07, Florida Statutes. On April 8, 1985, DCA, Monroe County, and I. D. Properties, the previous owner of the subject property, executed a Joint Stipulation of Settlement regarding DCA's challenge to a prior development order for the subject property. That Joint Stipulation of Settlement required the preservation of certain tropical hammock on the site including Paradise Tree hammock. After executing the Joint Stipulation of Settlement, I. D. Properties quitclaimed its interest in the site to Key Largo Associates, Ltd. Key Largo Associates, Ltd. proceeded to seek approval from Monroe County to develop the property inconsistent with the terms of the Joint Stipulation of Settlement. Those efforts resulted in the Development Order which is the subject of this case. The County Commission issued the Development Order granting a major conditional use permit for the Project to Key Largo Associates, Ltd., after being ordered to do so by the Circuit Court for Monroe County. The Development Order purports to authorize the complete elimination of existing tropical hammock on the site including the Paradise Tree hammock. The Development Order is inconsistent with the Monroe County Comprehensive Plan and the Land Development Regulations adopted thereunder. In addition, the Development Order is contrary to the terms of the Joint Stipulation of Settlement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which sustains the appeal filed by the Department of Community Affairs and which rescinds the issuance of Monroe County Resolution No. 233- 1991. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August 1993. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993. COPIES FURNISHED: Terrell K. Arline Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Betty J. Steffens, Esquire McFarlain, Wiley, Cassedy & Jones Post Office Box 2174 Tallahassee, Florida 32316-2174 Blackwater Associates Partnership 7225 S.W. 108th Terrace Miami, Florida 33156 Ray Parker Parker Real Estate 2028 North Dixie Highway Fort Lauderdale, Florida 33305 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary FLWAC Exec. Office of the Governor 311 Carlton Bldg. Tallahassee, Florida 32301
Findings Of Fact The Resource Recovery Facility The purpose of the Applicants' proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of municipal solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,200 tons of refuse each day, and generate up to 55.5 megawatts of electrical power. The ultimate disposal capacity of the proposed facility is 3,300 tons of refuse each day, and a generating capacity of 83.25 megawatts. The proposed RRF complex will include an administrative building, scalehouse/weigh station, receiving and handling building, furnace boilers, turbine generators, ash disposal area, and electrical substation. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse receiving and handling building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is an undeveloped 25-acre parcel of land situated on the south side of Northwest 45th Street (Hilton Road), midway between the Florida Turnpike and Powerline Road; an unincorporated area of Broward County. The uses surrounding the site are predominantly industrial. On the south side of Hilton Road, between the Florida Turnpike, which lies to the west, and Powerline Road, which lies to the east, are welding shops, engine repair shops, and automobile salvage yards. Located north of Hilton Road is an industrial zoned area which includes an asphalt batching plant. Immediately south and east of the project site is a newly permitted landfill area which will function as an expansion of the existing landfill located immediately south and west of the site's boundaries. 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 bounty 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 is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans, and satisfies the goals, policies, and objectives of the Broward County Comprehensive Plan. On April 22, 1986, the Board of County Commissioners of Broward County approved the rezoning of the site to Planned Unit Development (PUD) Special Complex District, and approved the RRF conceptual site plan. The proposed RRF is a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, a permitted non-residential use. 1/ The Department of Community Affairs, Department of Environmental Regulation, and South Florida Water Management District concur that the proposed RRF is 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. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel on April 21, 1986, and in the Florida Administrative Weekly on April 18, 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting certification for the location, construction and operation of the proposed facility, subject to the conditions of the certification attached to this Recommended Order as Appendix II. DONE AND ORDERED this 9th day of January 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of January 1987.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Tolomato Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of rulemaking by FLWAC.
Conclusions Having considered the record in this cause, it is concluded pursuant to Section 190.005(1)(e)1 through 6, Florida Statutes: That all statements contained within the Petition, as amended, are found to be true and correct. That the creation of the district is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local comprehensive plan. That the area of land within the district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district will be compatible with capacity and uses of existing local and regional community services and facilities. That the area that will be served by the district is amenable to the special-district government. DONE and ENTERED this 25th day of October, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1990. COPIES FURNISHED: Ken Van Assenderp, Esquire George L. Varnadoe, Esquire Post Office Box 1833 Tallahassee, FL 32302-1833 Larry Haag, Esquire Citrus County Courthouse 110 North Apopka Avenue Inverness, FL 32650 Steven Pfeiffer, Esquire Alfred Bragg, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Patricia A. Woodworth, Secretary Florida Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 William Buzzett, Esquire Florida Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 David Maloney, Esquire Florida Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 Jeannette Haag, Esquire Withlacooche Regional Water Supply Authority 452 Pleasant Grove Road Inverness, FL 32652
The Issue The issue in this case is whether Ft. Myers' comprehensive plan, as amended, is not in compliance for the reasons set forth in the prehearing stipulation, as amended during the final hearing.
Findings Of Fact Background The City of Ft. Myers, (Ft. Myers) adopted its comprehensive plan on February 13, 1989. The Department of Community Affairs (DCA) issued a Notice of Intent to find the plan not in compliance. Among other things, DCA alleged that the plan improperly omitted the Mid-Point Bridge and was inadequate in terms of intergovernmental coordination, at least with regard to the bridge. The City of Cape Coral (Cape Coral) and Lee County filed petitions to intervene. The petitions challenged the Ft. Myers plan based on its omission of the Mid-Point Bridge. DCA and Ft. Myers subsequently reached a settlement. On August 20, 1990, Ft. Myers adopted plan amendments pursuant to the settlement agreement. The plan, as amended, will be referred to as the Plan. DCA issued a Notice of Intent to find the plan amendments in compliance, but Lee County and Cape Coral, finding the plan amendments unsatisfactory, continued to prosecute their challenge to the Plan. Ft. Myers and Cape Coral are two of the three municipalities located in Lee County. /2 The two cities are divided by the Caloosahatchee River, which forms the western end of the Okeechobee Waterway. This waterway links the Gulf of Mexico to Lake Okeechobee, via the Caloosahatchee River, and Lake Okeechobee to the Atlantic Ocean. In the eastern part of Lee County, the Caloosahatchee River runs from east to west. In this area, the river is spanned by the State Road 31 Bridge and, further downstream, the Interstate 75 bridge. In the vicinity of Interstate 75, about two miles northeast of the city limits of Ft. Myers, the river widens, makes a slow turn, and takes a northeast-to-southwest course. Except for a railroad bridge about one mile downstream from the Interstate 75 bridge, the next bridge is the Edison Bridge, which is about 5 1/2 miles downstream from the Interstate 75 bridge. The Edison Bridge serves old U.S. 41. The southern landfall of this bridge runs into the northern end of the central business district of Ft. Myers. The Edison Bridge, which is presently two lanes, is planned to be widened to six lanes in the near future. About 1/2 mile downstream of the Edison Bridge is the Caloosahatchee Bridge, which serves new U.S. 41. The southern landfall of the Caloosahatchee Bridge, which is sometimes called the 41 Bridge, also runs into the central business district of Ft. Myers. The Caloosahatchee Bridge is four lanes. About seven miles downstream from the Caloosahatchee Bridge is the Cape Coral Bridge, which is the last bridge before the mouth of the river. The Cape Coral Bridge was recently expanded to four lanes. The proposed Mid-Point Bridge would be located 3.4 miles upstream from the Cape Coral Bridge and 3.8 miles downstream from the Caloosahatchee Bridge. At this point, the river runs more in a north-to-south direction. The bridge would connect central Cape Coral with south Ft. Myers. The Mid-Point Bridge project would include an east-west road corridor on both sides of the river. The corridor would connect Everest Parkway on the Cape Coral or west side of the river with Colonial Boulevard on the Ft. Myers or east side of the river. Everest Parkway is presently only about 12,000 feet long. The corridor would connect Everest Parkway with Miracle Parkway to the west, turn north at Malatcha Pass (the western boundary of Cape Coral), and extend to New Burnt Store Road. Everest Parkway and most of Miracle Parkway are four-lane divided collectors for which Cape Coral has jurisdiction. Colonial Boulevard is an arterial consisting of six lanes from McGregor Boulevard east to U.S. 41 and four lanes from U.S. 41 east to Interstate 75. The State had jurisdiction over all of Colonial Boulevard, but the County now has jurisdiction over the segment between McGregor Boulevard and U.S. 41. The west terminus of Colonial at McGregor Boulevard is about one- quarter mile east of the river. About 2000 feet east of McGregor is Summerlin Road. The next major intersection is U.S. 41, which is about 4000 feet east of Summerlin and less than 1.2 miles east of McGregor Boulevard. The Edison Mall, which is a major regional shopping mall, is less than one-half mile north of this intersection on the east side of U.S. 41. The next major intersection on Colonial is Metro Parkway, which is 1.3 miles east of U.S. 41. A little over 3.1 miles east of Metro Parkway is Interstate 75 where an interchange exists. From west to east, the major north-south roads are McGregor Boulevard, for which capacity improvements are constrained by historic and scenic factors; U.S. 41, which crosses the Caloosahatchee Bridge; Fowler Street and Evans Avenue, which are a one-way pair between the Edison Bridge and Colonial; Metro Parkway, which is proposed to be extended north to cross the proposed Metro Bridge; and Interstate 75, which is considerably east of the downtown area. Cape Coral is a relatively new community whose predominant land uses are residential. The relevant road network in Cape Coral consists of two major east-west roads: Pine Island Road, which is about four miles north of Everest, and Cape Coral Parkway, which is about three miles south of Everest. The major north-south roads are, from east to west, Del Prado Boulevard (at which point Everest presently ends), Country Club Boulevard, and Santa Barbara Boulevard. In contrast to Cape Coral, Ft. Myers has been more or less continuously occupied since the construction of a fort by the same name in 1850 between the Second and Third Seminole Wars. In 1887, Thomas A. Edison built his home alongside the Caloosahatchee River between the central business district and what is now Colonial Boulevard. Edison's home is located on McGregor Boulevard, which is attractively lined by Royal Palm trees. Aided by the arrival of Henry Plant's Coast Railroad in 1904 (and presumably a bridge to go with it), Ft. Myers began to grow rapidly in the early 1900's. The Colonial Boulevard area was not developed until the Florida land boom in the 1920's. Although the structures of historical interest are north of Colonial Boulevard, seven sextant structures on Rio Vista Way were constructed during the 1920's and 1930's and exemplify the prevailing Mediterranean revival architectural style. Running toward the river, Rio Vista Way intersects McGregor Boulevard about 250-500 feet of north of the western end of Colonial Boulevard. Data and Analysis February, 1989, Data and Analysis At the time of the adoption of the plan, Ft. Myers prepared a 45-page volume entitled "Traffic Circulation Data and Analysis." The document was dated August, 1988, and revised February, 1989. This document will be referred to as the 1989 Data and Analysis. The 1989 Data and Analysis reviews the city's current situation with respect to transportation facilities, especially roads. Table 1 of the document is a chart of daily traffic volumes based on Florida Department of Transportation traffic estimates issued April 10, 1987 Table 1 projects the peak hour level of services for various road segments for 2010. According to Table 1, by 2010, all of U.S. 41 is projected to be at level of service F, except for a segment south of downtown that is projected to deteriorate only to level of service D. All of Colonial Boulevard is projected to be at level of service F, except for the short segment between McGregor Boulevard and Summerlin Road, which is projected to deteriorate only to level of service C. McGregor Boulevard and Fowler Street are projected to be level of service F, except for the segment of Fowler Street beginning at the river, which is projected to be level of service E. Among the road segments already exceeding level of service standards are Colonial Boulevard west of U.S. 41 (level of service E) and McGregor Boulevard (level of service F). The 1989 Data and Analysis notes that the "intensified urbanization of Fort Myers will continue, and congestion problems will worsen." 1989 Data and Analysis, page 7. The 1989 Data and Analysis summarizes the "three major areas of major capacity deficiencies" as follows: Firstly, Fort Myers' downtown is the economic hub of Lee County and development attracts approximately 38,800 daily trip ends. [Fort Myers Downtown Plan, July 1986.] Second, the Edison Mall area which due to the major regional shopping mall is a main attractor of traffic congestions. Finally, McGregor Boulevard, the renowned historic and scenic highway, has capacity constraints. Id. at page 9. Map B in the 1989 Data and Analysis depicts future roadways and classifications. In addition to the existing Interstate 75, railroad, Edison, and Caloosahatchee bridges, the map shows the Metro Bridge. This bridge, which will be located just over one mile upstream from the Edison Bridge, will allow Metro Parkway to cross the river and intersect with Interstate 75 in north Lee County. According to the Future Land Use Map (FLUM), Metro Parkway presently extends from south of Colonial Boulevard to about two miles north of Colonial. Map B depicts Metro Parkway as continuing north until it meets the proposed landfall of the southern end of the proposed Metro Bridge. The proposed alignment of Metro Parkway between its present northern terminus and the proposed bridge takes it through economically distressed areas east of the railroad tracks and central, downtown area. Map F in the 1989 Data and Analysis depicts graphically travel desires lines for 1980 and 2010. The travel desires map shows the general direction and approximate volume of trips between 13 centroids for 1980 and 2010. The centroids aggregate up to 396 travel analysis zones. The 1989 Data and Analysis explains that the travel desires map "was produced as part of the MPO 2010 Needs plan update . . .." 1989 Data and Analysis, page 19. The 1980 travel desires line signifying the greatest number of trips runs in at northeast-southwest direction between south Ft. Myers near the river to north Ft. Myers a couple of miles inland. Other major 1980 travel desire lines cross the river in the vicinity of the Caloosahatchee, Edison, and proposed Metro Bridges cross the river between the center of Cape Coral and north Ft. Myers and connect north Ft. Myers to a point well east of Interstate 75 in the area of Lehigh Acres. The projected travel desires lines signifying the most travel in 2010 are the above-described line between south and north Ft. Myers and a line between south Ft. Myers and a point about six miles due south. The latter travel line depicts considerably less traffic in 1980. Compared to the two most significant 2010 travel lines, the travel lines crossing the river are projected to increase at a lesser rate. Table 3 in the 1989 Data and Analysis contains 1987 Traffic Counts. The table, which is derived from Lee County data, projects when various road segments will deteriorate to seasonal level of service E. Table 3 projects that Colonial Boulevard between Summerlin Road and U.S. 41 and Colonial east of Metro Parkway will deteriorate to peak season level of service E by 1988 and 1992, respectively. McGregor was already at an average level of service of E by 1987. Segments of Metro Parkway south and north of Colonial are projected to reach level of service E by 1991 and 1989, respectively. Also, U.S. 41 at the river is projected to deteriorate to level of service E by 1992. Other relevant segments are projected to be at seasonal level of service D or better. Map G in the 1989 Data and Analysis graphically depicts 1980 and 2010 levels of population and employment by area. In general, Map G shows that, in 1980 and 2010, Cape Coral experienced and is projected to continue to experience considerably greater population than employment opportunities. North and south Ft. Myers' figures show a much better balance between population and jobs. Addressing Map B in, the 1989 data and Analysis, which depicts future roadways, the 1989 Data and Analysis states: The City's Major Thoroughfare Plan (Map H[)] /4 has been developed to coordinate with the Metropolitan Planning Organization, State and County plans to the greatest extent possible. The most significant deviations from these plans are the terminus of the Evans/Fowler one-way pair and the exclusion of a "mid- point bridge." The proposal by other agency plans of a "mid-point bridge," at its current proposed location, conflicts overwhelmingly with other goals, objectives, and policies of the Comprehensive Plan. Conflicts with Land Use, Historic, and Community Appearance elements and internal conflicts with the Traffic Circulation element precludes the City from supporting the proposed bridge alignment. The present and future land use pat1terns have been coordinated to the greatest extent feasible with the Major Thoroughfare Plan. 1989 Data and Analysis, page 36. The 1989 Data and Analysis does not explain how the Major Thoroughfare Plan ``coordinates'' with the plans of the Metropolitan Planning Organizations' State, and County plans. Maps A and B of the 1989 Data and Analysis depict, respectively, present and future roads. Tables in the 1989 Data and Analysis following the Major Thoroughfare Plan--2010 list transportation projects included in the list of one organization or entity but excluded from that of another. Mentioning the Mid-Point Bridge and approaches, Table 12 states "The City of Fort Myers is adamantly opposed to this project on the basis of it being inconsistent with the City's Comprehensive Plan." The 1989 Data and Analysis concludes with a discussion of "issues and opportunities." This discussion mentions the maintenance or provision of "adequate road capacity for future traffic needs" and the preservation and protection of the "quality of residential areas, major activity centers, and recreation and environmental resources." Nothing in the 1989 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. Setember, 1990, Data and Analysis An updated version of the 1989 Data and Analysis was issued. The new version bears the date, "August 1988," but also states that it was "updated September 1990." This document will be referred to as the 1990 Data and Analysis. Table I in the 1990 Data and Analysis is based on the same Florida Department of Transportation estimates issued April 10, 1987, on which Table 1 in the 1989 data and Analysis was based. The above-noted segments are all projected to reach the same level of service, except that all segments of U.S. 41 are projected to reach level of service F by 2010. Other differences between the 1989 Data and Analysis and 1990 Data and Analysis appear fairly minor. /6 Table IV updates the 1987 Traffic Counts in the 1989 Data and Analysis with 1988 Traffic Counts, which are, also from Lee County. The differences as to when relevant road segments are projected to deteriorate to peak season level oil service E are as follows: Colonial Boulevard east of Metro Parkway, which is now projected to reach level of service E in 1993 instead of 1992; Metro Parkway north and south of Colonial, which are no longer "projected" to deteriorate to level of service E in 1988; and Colonial Boulevard just west of U.S. 41, which is now projected not to reach level of service E within the applicable timeframe instead of reaching it in 1988. There is no difference in the discussions in the 1989 Data and Analysis and 1990 Data and Analysis concerning the differences between the road network portrayed by the Major Thoroughfare Plan--2010 and the road networks portrayed by the plans of the Metropolitan Planning Organization, State, /7 and County. The conflict concerning the Mid-Point Bridge and corridor remains unresolved. Nothing in the 1990 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. The MPO Plans and Environmental Fact Statement Other sources of data and analysis existing in February, 1989, pertain to the Mid-Point Bridge and transportation planning issues. Much of these data nd analysis are associated with the work of the Lee County Metropolitan Planning Organization (MPO) and of Lee County and its consultants in the preparation of an environmental impact statement for the Mid-Point Bridge and corridor. When adopting the Plan, Ft. Myers representatives were aware of the data and analysis used or prepared by the MPO and the data and analysis used to prepared by Lee County and its consultants in connection with the environmental impact statement. Required by federal law, a metropolitan planning organization coordinates transportation planning in areas governed by more than one local jurisdiction to ensure that federal and state transportation funds are spent effectively. The MPO consists of 12 voting members: five Lee County Commissioners, the Mayor and two City Council members of Ft. Myers, the Mayor and two City Council members of Cape Coral, and the Mayor or a City Council member of Sanibel. The MPO is also served by a Technical Advisory Committee (TAC), which consists largely of planning and engineering employees of each of the member jurisdictions. The TAC analyzes data and presents to the MPO for consideration. The MPO prepared its initial transportation plan in 1974. The MPO first included the Mid-Point Bridge in its 1978 transportation plan. The MPO later dropped the Mid-Point Bridge project, but reinstated it in 1983. The Mid-Point Bridge remained in the MPO's transportation plans until March, 1991. At an early stage, Lee County was opposed to the bridge, but later reversed its position. The positions of Cape Coral and Ft. Myers appear to have remained constant. In 1987, the MPO began to run computer simulations of various transportation improvements. These modeling runs, or assignments, were integral to the preparation of the MPO 2010 Needs Plan (Needs Plan) and MPO 2010 Financially Feasible Plan (Financially Feasible Plan). Although some text is associated with these plans, they generally consist of two maps of road networks with indications as to the number of lanes and type of facility (e.g., freeway or collector). The Needs Plan depicts the system needed "to accommodate projected travel demand efficiently and conveniently at acceptable levels of service, but unconstrained by cost considerations." Financially Feasible Plan. Based upon cost-benefit analyses, the Financially Feasible Plan prioritizes the facilities shown in the Needs Plan. It is arguable whether the Financially Feasible Plan depicts road improvements that are, in fact, financially feasible. The plan concedes that the MPO has proposed improvements whose cost nearly doubles projected available revenues: The estimated $993 million cost of the Financially Feasible Plan, while $442 million less than that of the 2010 Needs Plan, still exceeds projected financial resources from traditional or existing Sources by -some $313 million. In order to pay for the implementation of the Financially Feasible Plan, a number of options for raising additional revenue available under current Florida law have been identified. Financially Feasible Plan. Although a number of the revenue options involve Ft. Myers, such as through the use of impact fees or local option gas taxes and infrastructure sales taxes, the proposed Mid-Point Bridge and corridor would not Ft. Myers to contribute directly to its cost. The record does not address whether the commitment of Lee County to the project prevents the County from sharing in other transportation expenses otherwise borne to a greater extent by Ft. Myers. Lee County intends to pay for the Mid-Point Bridge and the corridor between Del Prado-Boulevard and Interstate 75. The Lee County schedule of capital improvements, which are contained in the Lee County plan, includes the $168.4 million cost of the Mid-Point Bridge and corridor from Del Prado to Interstate 75. The capital improvement schedule identifies the revenue source as toll revenue bond proceeds. Cape Coral intends to pay for the corridor west of Del Prado Boulevard. The Cape Coral schedule of capital improvements includes $17.8 million for the design and construction of the east-west expressway from Del Prado to Santa Barbara and includes another $6.9 million for related right-of- way acquisition. The Cape Coral plan, as amended August 27, 1990, identifies impact fees and gas taxes as sources for the needed revenue, although later amendments identify other sources as well. In running computer simulations, the MPO used the Florida Standard Model to process socioeconomic data inputs and project levels of service for various network alternatives. The TAC validated the modeling by comparing projections to current travel conditions. The MPO or TAC approved the model after reviewing the validation results. After approving the model, the MPO and TAC unanimously approved the socioeconomic data in December, 1986. In addition to the specified transportation network, the data inputs include such socioeconomic data as projected populations, numbers of housing units by type, pp categories by type, and school enrollments. Generally, each TAC member supplied the socioeconomic data for the jurisdiction represented by that member. Decisions concerning the evaluation of data were by majority vote. The TAC and its outside consultant, Wilbur Smith and Associates, selected alternatives to test, although it appears that the TAC had considerable discretion in `the choice of alternatives. The socioeconomic data were correlated to applicable land uses, which were derived from land use plans then in effect for the various jurisdictions. None of these land use plans contained the comprehensive revisions required by the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (the Act). By running traffic simulation models, Wilbur Smith and Associates determined the relationship of population to employment for 1980 and projected the relationship to 2010. This work was reflected in Map G of the 1989 Data and Analysis and 1990 Data and Analysis. Wilbur Smith and Associates then simulated the travel projected to occur in the area and the routes to accommodate such travel. This work eventually was incorporated into the travel desires map, which, is Map F of the 1989 Data and Analysis and 1990 Data and Analysis. The modeling process is iterative. The first network model led was the existing and committed road network, as of February, 1987. This system, as expected, was grossly inadequate to handle projected growth through 2010. The existing and committed network consisted of, the following committed projects: the Edison Bridge six-laning, the cape Coral Bridge four-laning, an extension of Colonial Avenue, and multi-laning of State Road 80. The next network modelled was the MPO 2000 Long Range Transportation Plan. The predecessor to the 2010 Needs Plan, the 2000 Long Range Transportation Plan, which included the Mid-Point Bridge, provided an ample road network. A total of 15 assignments were run prior to the preparation and adoption of the Needs Plan. The computer modelling represents the first time that the MPO undertook such work on its own or with an outside consultant. By the latter half of 1987, the TAC and Wilbur Smith and Associates had prepared Assignment D, which included much of what was eventually included in the Needs Plan. Assignment D became a base against which other alternatives were tested. At the request of Ft. Myers, the TAC and Wilbur Smith and Associates ran an assignment without the Mid-Point Bridge. This assignment included the Iona Cove Bridge expanded to four lanes and served by a freeway. /8 As ultimately adopted in the Needs Plan, the Iona Cove Bridge and Southern Corridor would consist of a two-lane bridge downstream from the Cape Coral Bridge and about 2 1/2 miles upstream from the mouth of the Caloosahatchee River. On the Cape Coral side, the Southern Corridor would connect indirectly to the Cape Coral Parkway well west of the Cape Coral Bridge. On the Ft. Myers side, the Southern Corridor would be a new four-lane expressway in south Lee County that, from west to east, would intersect Metro Parkway and then Interstate 75. As a two-lane expressway, the Southern Corridor would turn north, passing south of the regional airport, and teirminate at Lehigh Acres in east Lee County. The simulation without the Mid-Point Bridge was Assignment G. Due to faulty data inputs, 9 possibly concerning one or more developments of regional impact in south Lee County, the MPO reran the requested alternative as Assignment J. Assignment J is the only valid assignment excluding the Mid-Point Bridge except for the initial run of the base network. Table A-I of Technical Report 3, which was prepared by Wilbur Smith and Associates, compares projected traffic volumes on various road segments based on Assignment D and Assignment J. In Assignment D, the Iona Cove Bridge would be a two-lane facility with expressway approaches, rather than freeway approaches. Treating the Edison, Caloosahatchee, and Metro Bridges as a single corridor with a capacity of 138,000 trips per day, Table A-I projects that these bridges would handle, under Assignment D, 142,864 trips per bay and, under Assignment J, 153,605 trips per day. The respective volume to capacity ratios are 1.04 and 1.11. The Mid-Point Bridge in Assignment D would have a capacity of 76,000 trips per day and would carry 36,542 for a volume to capacity ratio of 0.48. The Cape Coral Bridge, with a capacity of 33,600, is projected to serve 34,565 trips per day under Assignment D and 43,778 trips per day under Assignment J. The respective volume to capacity ratios are 1.03 and 1.30. Table A-I considers a group of three north-south roads in Ft. Myers, including U.S. 41, in three segments as they travel south from the river. The range of volume to capacity ratios, under Assignment D, from 0.76 to 1.00 and, under Assignment J, from 0.84 to 1.06. Table A-I reports the results for 18 other segments in Cape Coral or Ft. Myers. All but four of these segments are below a volume to capacity ratio of 0.95 under Assignment D. With Assignment J, eight segments exceed 1.0 and two more exceed 0.95. The MPO adopted the Needs Plan on January 21, 1988. After running 14 more assignments, the MPO adopted the Financially Feasible Plan on November 17, 1988. The more elaborate Needs Plan contains a four-lane Metro Bridge with Metro Parkway as, a divided six-lane arterial south of the bridge and a four-lane expressway to U.S. 41 north of the bridge. The Caloosahatchee Bridge remains four lanes, as would be the proposed Mid-Point Bridge. To the west, Everest Parkway is a four-lane freeway to Del Prado Boulevard, then Everest turns into a four-lane expressway as it is extended west to join the existing Miracle Parkway. As the new expressway turns north toward New Burnt Store Road, it is reduced from four to two lanes. To the east of the Mid-Point Bridge, the Needs Plan converts Colonial Boulevard to a four-lane freeway with a pair of one-way service roads and elevated interchanges at Summerlin Road, U.S. 41, and Metro Parkway. The one-way service roads continue east to the vicinity of Interstate 75, but Colonial becomes a four-lane expressway east of Metro. The Financially Feasible Plan retains the four- lane Metro Bridge, but reduces the capacity of the adjoining corridor to the north. Mid-Point Bridge remains four lanes, but, on the Cape Coral side, the expressway is reduced from four lanes to two lanes at Santa Barbara Boulevard rather than at New Burnt Store Road. To the east of the Mid-Point Bridge, Colonial remains unchanged from the Needs Plan. The Financially Feasible Plan eliminates the Iona Cove Bridge and the eastern half of the Southern Corridor. The southern half of the expressway is shown, but is reduced to two lanes and ends west of Interstate 75. Another important source of data and analysis relating to the Mid- Point Bridge and approaches is a draft environmental impact statement prepared by Lee County for the Mid-Point Bridge and corridor. The Draft EIS considers the proposed Mid-Point Bridge in the context of two alternatives: "no action" and the construction of the Iona Cove Bridge and Southern Corridor. Exhibit 7 of the Draft EIS /10 portrays the Colonial corridor east of the Mid-Point Bridge. Consistent with the MPO Needs Plan's depiction of elevated interchanges at Summerlin, U.S. 41, and Metro Parkway, Exhibit 7 also shows overpasses at McGregor, Fowler, Evans, and the railroad track. By the summer of 1987, Lee County had retained Greiner, Inc. as a consultant to assist in the preparation of the Draft EIS. Cape Coral, which joined Lee County in proposing the project, hired Kimley-Horn & Associates, Inc. to assist in projecting transportation planning impacts west of Del Prado Boulevard. The Coast Guard, which served as the lease agency, approved the final environmental impact statement in September, 1990 (EIS). Greiner retained Wilbur Smith and Associates as a subconsultant to perform traffic modeling for roads east of Del Prado, and Kimley Horn performed modeling for Cape Coral for roads west of Del Prado. Either Griner or Wilbur Smith and Associates prepared Exhibit 5 /11 in the Draft EIS. Exhibit 5 identifies various existing and proposed river crossings, supplies actual 1986 traffic volumes, and projects traffic volumes for 2010 if no action were taken, if the Mid-Point Bridge were constructed, and if the Iona Cove Bridge and Southern Corridor were built. For 2010 projections, Exhibit 5 presumed that the Edison Bridge would be six lanes, Caloosahatchee Bridge would be four lanes, Cape Coral Bridge would be four lanes, and Metro Bridge would be added. For 1986, Exhibit 5 shows the Edison Bridge as handling 19,700 trips daily for a level of service of E, the Caloosahatchee Bridge as handling 45,800 trips daily for a level of service of D, and the Cape Coral Bridge as handling 45,400 trips daily for a level of service F. If no action were taken, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 59,400 and C; Caloosahatchee Bridge 59,500 and E; and Cape Coral Bridge (which was widened after 1986) 65,950 and If the Mid-Point Bridge were built and the Iona Cove Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 53,140 and B; Caloosahatchee Bridge 52,400 and D; Mid-Point Bridge 47,400 and C; and Cape Coral Bridge 41,870 and C. If the Iona Cove Bridge were built and the Mid-Point Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 56,427 and C; Caloosahatchee Bridge 56,250 and D; Cape Coral Bridge 45,740 and D; and Iona Cove Bridge 34,600 and B. Composite Exhibit 4 of the Draft EIS /12 projects average annual daily traffic for over 100 road links /13 mostly on the Ft. Myers side of the river and bounded on the east by Interstate 75 and the south by the Southern Corridor. The projections address alternatives of no-action, the Mid-Point Bridge, and the Iona Cove Bridge. Twenty of the Ft. Myers links most directly affected the addition or deletion of the Mid-Point Bridge yield 537,398 trips under the no-action alternative, 614,280 trips under the Mid-Point Bridge alternative, and 522,425 trips under the Iona Cove Bridge alternative. /14 With the Mid-Point Bridge, the new elevated freeway is projected to receive about one-third and two-thirds more traffic than Colonial presently experiences just west of Metro Parkway and just west of U.S. 41, respectively. With the Mid-Point Bridge, the projected number of trips on these two links are, respectively, 40,900 and 52,700. Just west of Summerlin, the traffic volume on Colonial increases from 6400 to 43,300 trips. Even if the three Colonial links are excluded from the 20 links, the total volume remains greatest under the Mid- Point Bridge and corridor alternative, which is projected to have 477,380 trips. For the remaining 17 links, the no-action alternative generates 469,038 trips and the Iona Cove Bridge and Southern Corridor alternative generates 455,345 trips. Analyzing the same data, Transportation Planner and Engineer Marty Wells, who is an employee of Gorove-Slade, testified on behalf of Ft. Myers that he examined the links identified by the Draft EIS that are in the City limits. These links yield the following volumes under the three alternatives: no action--1.84 million trips; Mid-Point Bridge and corridor-- 2.1 million trips; and Iona Cove Bridge and Southen Corridor-- 1.8 million trips. May 15 Transcript, pages 29 et seq. Using existing data, Mr. Wells also calculated the capacities for these links. Based on the volumes in the preceding paragraph, the overall volume-to-capacity ratios for Ft. Myers' links are as follows for the three alternatives: no action--0.60; Mid-Point Bridge and corridor--0.68; and Iona Cove Bridge and Southern Corridor--0.59. In other words, the Mid-Point Bridge and corridor, if built, would mean that overall traffic would absorb 68% of the capacity of Ft. Myers links most affected by the proposed project. The no-action alternative, on the other hand, would mean that overall traffic would absorb only 60% of the capacity of the same links. Table 415 of the Draft EIS reports other variables among the three alternatives. The first is that total daily river crossings in 2010 are greatest if the Mid-Point Bridge is built. The Mid-Point Bridge alternative generates 196,110 river crossings daily. The Iona Cove Bridge alternative generates 193,020 daily river crossings, and the no-action alternative generates only 186,090 daily river crossings. Under total vehicle hours of operation, Table 4 projects for 2010 the following figures: no-action alternative-- 656,902 hours; Mid-Point Bridge alternative--638,433 hours; and Iona Cove Bridge alternative--660,483 hours. Total vehicle miles are projected as follows: no-action alternative--14,466,600; Mid-Point Bridge alternative--14,437,100; and Iona Cove Bridge alternative--15,013,456. Table 5 of the EIS compares the Mid-Point and Iona Cove alternatives. These data were available by February, 1989. The Mid-Point Bridge and corridor would require 8.8 miles of corridor and 1.5 miles of bridge over the river, reduce vehicle miles traveled from the no-action alternative, by 30,000 daily, bypass wetlands, cost about $170 million, and require the relocation of 100-350 residences, 2' 6-56 businesses, and 1-4 nonprofit operations. The Iona Cove Bridge' and Southern Corridor would require 19.3 miles of corridor and 2.4 miles of bridge over the river, increase vehicle miles traveled from the no-action alternative by 550,000 daily, require the removal of 10-30 acres of wetlands, cost about $266 million, and require the relocation of 317-361 residences and 10 businesses. Table 5 of the EIS concludes that the Mid-Point Bridge would result in "more efficient distribution of traffic across combined bridges," and the Iona Cove Bridge would result in "[s]omewhat less efficient distribution of traffic across combined bridges." Table 5 reports that the "Mid-Point Bridge alternative "[c]omplies with existing land use plan; supports existing business communities," and the Iona Cove Bridge alternative would be "[non-compliant with land use plan; bypasses existing business communities." The Draft EIS concludes that the Iona Cove Bridge alternative is not a "reasonable or feasible" alternative to the Mid-Point Bridge alternative. The, EIS later cautions, however, that the Iona Cove Bridge alternative may have a role in the "very long term" transportation network. After rejecting the Iona Cove Bridge alternative, the Draft EIS reports that the "`No Action' Alternative is the base caste against which the [Mid Point Bridge project) is compared in order to determine the benefits and impacts of the project." The EIS reveals more of the analysis undertaken by the Coast Guard in reaching its latter conclusion that the no- action alternative "is not a reasonable alternative." EIS, page 171. To the extent that any data are implicit in such analysis, the data were available in February 1989. Offering a somewhat `expanded version of a discussion of community impact contained in the Draft EIS, the EIS notes that the State of Florida has designated as an "historic highway" McGregor Boulevard from U.S. 41 to College Parkway, which leads to the Cape Coral Bridge. The EIS acknowledges that Lee County and Ft. Myers have ordinances similar to state law with one key difference. The County ordinance specifically allows construction of an overpass for the Mid-Point Bridge corridor, and the City ordinance specifically prohibits such crossings. The EIS observes that litigation is pending over the controversy concerning the McGregor overpass, which would require the removal of about seven Royal Palms along McGregor according to the EIS. EIS, page 2-41. In a similar vein, the EIS reports that the Colonial corridor would mean, due in large part to the existing Colonial arterial, little community- disruption from "proximity" effects, such as "air and noise pollution, visual impacts, access changes, and other considerations." EIS, page 2-37. The EIS anticipates that 75 acres would be required for additional right-of-way along Colonial Boulevard. Id. at page; 2-38. The EIS considers in some detail the impact of noise pollution. The corridor would result in noise levels in excess of those set for residential use and would affect 26 dwelling units along the Colonial corridor. EIS, page 4-56 and Tables 35 and 36. Sound barriers are not technically feasible for the road surface between the river and McGregor and Summerlin and U.S. 41. EIS, page 4-57. For the remainder, cost barriers are implicitly deemed cost ineffective. The EIS envisions a 288'-330' right-of-way along Colonial Boulevard. The right-of-way would be within about 150' of Rio Vista Way. The corridor would be elevated 22'-24'. Turning to the Cape Coral side of the project, the EIS states: It is envisioned that a direct east-west roadway corridor [on the Cape Coral side of the river would enhance future residential development in the area. EIS, page 4-2. The EIS generally fails to address any need for the development in Cape Coral of commercial, industrial, recreational, or institutional uses. The EIS contains detailed comments from Ft. Myers' counsel with an appendix containing, among other things, comments from Ft. Myers' transportation consultant, Gorove-Slade Associates, Inc. Ft. Myers' counsel submitted these comments to the Coast Guard on September 22, 1989, and the EIS also contains the Coast Guard's undated responses. One suggestion of the Gorove-Slade representative is that reversible lanes on the existing bridges could accommodate the present and future demand. The Gorove-Slade letter suggests that reversible lanes are feasible as long as the directional imbalance on a bridge is "normally 2:1 to 3:1." The Gorove-Slade letter asserts that the imbalance is 67/33, which is of course within the above-stated range. Rejecting the suggestion of reversible lanes, the Coast Guard first erroneously concludes that the 67/33 split is not greater than 2:1. Then the Coast Guard states that the more recent directional imbalance is 58/42. The source of the Coast Guard's data is undisclosed. However, the evidence is abundant that the cross-river traffic is at least 2:1 toward Ft. Myers on weekday mornings and 2:1 toward Cape Coral on weekday afternoons. Even Lee County's witness, Ronald Talone, who was formerly employed in the Lee County Planning Department, testified to a 67/33 split based on data that Lee County had collected./ 16 The Coast Guard response also relies upon "potential shifts in land use patterns [in connection with) land use plans, which were the basis for [the Draft EIS] analysis. The results show an overwhelming need for the Midpoint Bridge Corridor." EIS, page 151. The basis for this statement apparently is the work of Lee County's consultant, who replicated future land uses under the settlement agreement between DCA and Lee County. However, this work was "unofficial" and offered only "initial results." EIS, page 159. The EIS notes that the settlement between Lee County and DCA required the county to reduce densities in outlying areas, such as those served by the Southern Corridor proposed by Ft. Myers. The reductions reportedly were as much as 10,000 percent, "further reducing the travel production/attraction base in those areas." EIS, page 160. The consultant also considered the plans of "cities in the region." EIS, page 146. However, it is unlikely that the consultant considered the plans adopted pursuant to the Act. It is difficult to determine the extent to which any traffic modeling in this case was informed by the future land use designations contained in the plans of Lee County, Cape Coral, and Ft. Myers under the Act. If not done, it is impossible to determine the impact of changed future land uses, which could result in large changes in the distributions of new residents. /17 However, later modeling--presumably incorporating changed future land uses--reportedly did not generate significantly different traffic volumes, at least for the various river crossings. Such later modeling includes that performed by Gorove- Slade for Ft. Myers. Focusing directly on land use planning concerns, the Coast Guard explains one of the reasons why it did not oppose the Mid-Point Bridge proposed by Lee County and Cape Coral: The concept of intentionally prohibiting construction of a bridge to force development on one side of a river is inappropriate and contrary to urban development concepts. In this instance, the no-bridge alternative would not stimulate development, given the interdependent nature of the Lee County economy. EIS, page 151. Lee County did not attempt to tell the city governments to change their Future Land Use elements, as the Fort Myers comments suggest that Cape Coral be instructed to do. * * * Alternative land use planning is not the purview of the transportation planner and is outside the scope of the project to plan this single bridge crossing. Instead, a project such as this is required to accept the adopted land use plans and the projected travel demand based on them. EIS, pages 169 and 171. Alluding to the land-use planning responsibilities placed upon local governments by the Act, the Coast Guard notes: Since the publication of the [Draft EIS], an important event has taken place in regard to this specific issue, rendering [a fatteners'] comment obsolete. The top state land planning agency, the Department of Community Affairs, found the Fort Myers' Comprehensive Plan to be non-compliant with state land planning guidelines because it prohibited the Midpoint Bridge, which is include in the plans of the county, the region, /18 and the City of Cape Coral. Administrative hearing procedures were scheduled to settle the issue but, instead of defending its opposition to the bridge, the city elected to remove the wording obstructing the project from the Comprehensive Plan. Instead, the city agreed to enter binding arbitration on the issue. Id. at page 153. Specifically addressing urban sprawl, the Coast Guard response states: Lee County Future Land Use plans since 1984 have aimed at containing urban sprawl through encouraging compact development patterns. The 1984 Lee Plan was based upon an urban service area concept, which focused future growth on the existing urbanized areas and their environs through a combination of land use categories, density allocations, infrastructure policies, and environmental protection standards. The 1989 Lee Plan continued to stress the importance of existing and permitted urban areas as the focal points for more intensive future growth. The major existing and permitted urban areas in Lee County, in terms of size, are clearly Cape Coral, Fort Myers (including its Urban Reserve area for future growth), and Lehigh Acres. . . . Both the 1984 and 1989 Lee Plans recognized these three major urban areas as givens, where preexisting investments and governmental approvals dictated the need for public services and infrastructure. Together, they constitute a tier of urban areas extending across the northern central part of the county, which is served by the east-west alignment of the Midpoint Bridge Corridor as extended to connect with Lee Boulevard in Lehigh Acres, as shown on the [Financially Feasible Plan]. The logic of connecting the population concentrations of Fort Myers and Cape Coral, the two largest urban areas in the County, with a primary east-west route is clear; with the extension to Lee Boulevard in Lehigh Acres, the logic of the Midpoint Bridge is even stronger. EIS, page 168. Summarizing its findings as to the planning decisions made by Lee County, the EIS concludes: The 1989 Lee Plan builds upon the 1984 Lee Plan. It was adopted as a result of the mandatory process of participation and review. It contains a responsible strategy for managing the large and rapid growth of the county. It sets forth numerous policies for providing the infrastructure necessary to support future populations, for projecting the sensitive natural environment, for paying for future public facilities, for maintaining a reasonable and compact, future land use pattern, and for buildings the necessary transportation network to allow its citizens to move efficiently between their homes, work, recreation, and shopping destinations. It is not a utopian document based upon unsubstantiated opinions, but a practical guide to development based upon the best available data and information. Following the amendments from the Stipulated Agreement, [the 1989 Lee Plan) will be fully consistent with Florida law and an even more effective guide for future development, in terms of reducing sprawl, protecting the environment, maintaining desirable land use patterns, and providing orderly expansion of roads and infrastructure. EIS, pages 169-70. Other Sources of Data and Analysis The Regional Comprehensive Policy Plan of the Southwest Florida Regional Planning Council (Regional Plan) contains land use analysis. Prepared no later than May 21, 1987, when the current version of the Regional Plan was adopted, the land use analysis was in existence at the time of the adoption of the Plan. In its analysis of the regional issue of Balanced and Planned Development under Land Use, the Regional Plan notes: The growth that has occurred [during the recent period of rapid growth that the region has experienced] can also", be considered "imbalanced." This imbalance is of two natures: inadequate development of certain common aspects of urban areas and inadequate distribution of certain types of urban areas. A lack of manufacturing is sometimes considered an indication of the urban inadequacies. More commonly, the problem is described as a lack of suitable jobs within industrial, office, education, and research facilities. The uneven distribution of urban uses is best (but not solely) depicted by an aerial view of the Region's major subdivisions, entire townships devoted to residential uses. Such areas have only limited commercial uses, few of the necessary public use site's, and high demand for transportation improvements for access to other areas. This lack of diversity is the result of private sector planning, namely large development projects, and traditional zoning techniques which discourage the use of planned unit developments by making them special exceptions and by segregating uses into separate zoning categories instead of using a performance zoning approach. Regional Plan, page 16-2. Another source of data and analysis is the Cape Coral comprehensive plan. Both the operative provisions and data and analysis provide a potential source of data and analysis in support of the Ft. Myers Plan. Adopted on February 13, 1989, the Cape Coral plan was in existence when the Ft. Myers plan was adopted. Amended August 27, 1990, the Cape Coral plan amendments were likely available, given noticed and public participation requirements, when Ft. Myers amended, its plan one week earlier. Cape Coral's Transportation Data and Analysis discloses that the city's strategy through 2000 is to direct future growth into the Infill and Transition areas. The Infill Area is located in Cape Coral's southeast quadrant, which has historically served as the growth center from which new growth emanated. The eastern two miles off Everest Parkway run through the Infill Area, dividing its northern third from its southern two-thirds. The Transition Areas is a band of land north and west of the Infill Area. Although Everest Parkway presently ends at the west limit of the Infill Area, the southern end of the Transition Area encompasses about 1 1/3 miles of the proposed Everest Parkway extension. Cape Coral's Transportation Data and Analysis rejects the MPO data concerning population projections for Cape Coral. The differences are significant. Rejecting the MPO projection as "lack[ing] any credibility, and . . . of no value as a planning tool," Cape Coral projects that its population would reach 100,000 persons by 2000, not 2010. Transportation Data and Analysis, pages 6-7. Cape Coral also contests other important socioeconomic data on which the MPO models rely, such as where Cape Coral residents actually reside or will reside. The MPO study "projected" that about 70% of-the population "lives" in the Infill and Transition Areas. The Cape Coral existing land use map provides that at least 90% of the population lives in these two areas. Cape Coral's Transportation Data and Analysis notes that the present location of commercial/office and other employment activities in Cape Coral is generally along the most heavily traveled roads, especially the Del Prado Boulevard, Cape Coral Parkway, and the Downtown Business District. This "strip commercial development" has engendered traffic congestion along these critical arterials. Without its own data or analysis as to employment trends, Cape Coral adopts the MPO data and analysis concerning, employment trends. This includes a projection that total employment within Cape Coral will increase from an estimated 8000 persons in 1980 to over 27,000 persons, presumably by 2000. Also, the ratio of Cape Coral residents to jobs in Cape Coral is expected to decrease from 4.2:1 in 1980 to 3.7:1 in 2000. The data and analysis add: "If the City commercial acreage estimates are realized, however, an even more favorable ratio would result." Transportation Data and Analysis, page 9. In any event, "Employment growth is expected to increase twice as fast as residential growth." Id. at page 8. Cape Coral's Transportation Data and Analysis acknowledges a clear directional flow or modal split of cross- river traffic: Until [the Cape Coral Bridge) is widened to four lanes (scheduled by the County for 1989), mile long traffic queues will continue to exist on the Cape Coral side of the bridge during the morning peak period and on the Fort Myers side during the afternoon peak. Transportation Data and Analysis, page 20. Through 2000, the destination of tries will remain largely outside the City of Cape Coral. Lacking "high intensity employment centers, airports or other facilities that attract County residents [to Cape Coral], the prime reason for travel into Cape Coral by nonresidents is to provide services, such as construction. Transportation Data and Analysis, page B-2. But this factor is relatively insignificant, as the data and analysis predict that, by 2000, there will be twice the number of trips to points outside the city than to points within the city. Transportation Data and Analysis, page 44. In the meantime, however, intensive growth will outstrip the capacity of Cape Coral's internal parkway system, id. at page 49, and Cape Coral's strategy in "road programming has been to the major roads into the two new proposed County Bridges". Id. at page 60. The Cape Coral plan contains operative provisions that, to some extent, address the historic absence of employment and regional shopping opportunities in the city. These provisions generally involve the attempt to deal with vacant, platted land and promote a mixture of uses in the city. /19 The Lee County plan was most recently amended on September 17, 1990. Based on the above mentioned notice and participation requirements, it is likely that all provisions were in existence when Ft. Myers adopted its amendments on August 20, 1990. The Lee County plan contains a number of provisions encouraging the development and redevelopment of mixed uses. /20 Lee County's traffic circulation element policy 21.1.1 adopts the Financially Feasible Plan with five minor changes. /21 Policy 21.1.3 is for the county's current Thoroughfare Alignment Project to reexamine the transportation model used to generate the MPO plans. Concerning the Mid-Point Bridge and associated corridor, the Lee County traffic circulation element states in relevant part: GOAL 24: MAJOR INTRA-COUNTY TRANSPORTATION CORRIDORS. To provide for efficient intra- county vehicular traffic by planning an integrated system of transportation corridors, possibly of limited access design, that connect urban centers within the county. OBJECTIVE 24.1 MID-POINT CORRIDOR. Create a new east-west transportation corridor, possibly of limited access design, across central Lee Counts in order to alleviate existing congestion of traffic crossing the Caloosahatchee River. POLICY 24.1.1: The county will continue the planning, feasibility determination, and environmental impact assessment for the Mid-Point Bridge. POLICY 24.1.2: The construction of this east-west transportation corridor will be coordinated through the Metropolitan Planning Organization to ensure system-wide continuity. POLICY 24.1.3: Due to the public need to provide this critically important corridor so as to solve roadway deficiencies affecting most of Lee County, and due to the admitted impossibility of devising any alignment, which would not generate at least some negative impacts, it is declared as the policy of Lee County that once the best alignment is selected this policy shall preempt any other perceived conflicting portion of the Lee Plan and such conflicts, real or perceived, shall not be construed so as to require or justify blocking the construction of this facility. POLICY 24.1.4: Because of the high priority Lee County placed on the planning and construction of this transportation corridor, permitting efforts shall be initiated by the year 1989, if feasible, and construction shall begin, if possible, by the year 1993. * * * The Lee County intergovernmental coordination element provides, in relevant part: GOAL 28: INTERGOVERNMENTAL COORDINATION. Lee County shall participate in and share the leadership of all necessary and desirable programs in coordinating the transportation planning and improvements of routes within or affecting Lee County. OBJECTIVE 28.1: PLANNING. Lee County will continue to plan cooperatively with its municipalities, surrounding counties, and FDOT. POLICY 28.1.1: The county will participate in the MPO and Regional Planning Council planning processes for system-wide facility needs. POLICY 28.1.2: The County will use informal mediation whenever possible to resolve disputes before other formalized processes are pursued. * * * Various other sources of data and analysis were in existence when the Plan was adopted. As Colonial proceeds east of McGregor, the prevailing and planned land uses are predominantly commercial, and the existing commercial uses are dependent upon direct access to Colonial Boulevard. The addition of an elevated freeway or expressway would tend to reduce business for some of these roadsides commercial uses due to, among other factors, the presence of one-way service roads in place of two-way traffic, less on-site parking, and less visibility from the road. However, the record establishes no more than a temporary reduction in commercial property values. It is unclear whether, in the longer term, commercial uses, especially the older ones along the western part of Colonial, would be impaired by a freeway. The record does not preclude the possibility that the corridor could lead to commercial revitalization, especially at the Summerlin, U.S. 41, and Metro Parkway interchanges. The existing and planned land uses on both sides of McGregor north and south of Colonial are low density residential. The record establishes that the elevated freeway would, through noise and visual impact, have a negative impact upon these and possibly other residential areas. However, the record does not establish the extent of such an impact. The record does not establish that the freeway would impair access between points within the affected area. Presently, motorists, pedestrians, and bicyclists must cross Colonial, which is an at-grade six-lane arterial west of U.S. 41. Accessibility with the Mid-Point Bridge corridor would depend upon a variety of factors, such as the design of the service roads and three interchanges, the sign of the other overpasses, the traffic on the service roads, and the traffic on the north- south roads in the vicinity of the corridor. Provisions of Ft. Myers Plan Traffic Circulation Element (TCE) Objective 1 is "To meet the transportation needs of the incorporated area through a balanced system of roadway, rail, air, boating, public transportation, and bicycle and pedestrian facilities." TCE Objective 2 is, "To maintain or provide adequate road capacity to meet present and anticipated future traffic needs." TCE Policy 2.4 is: "New roadway corridors will be provided when justified by needs where feasible, and when exiting corridors cannot meet the need. TCE Policy 2.6 is: "The City will obtain traffic counts and intersection studies to determine current service levels." Standard 2.6.3 mentions capacity constraints on McGregor Boulevard and all roads in the downtown area; for those, the peak hour, peak season acceptable level of service is "Maintain and improve." The downtown area is limited to the immediate vicinity of the Caloosahatchee and Edison Bridges. TCE Objective 5 is: "To preserve the integrity and quality of residential areas, major activity centers, and recreational and environmental resources." TCE Policy 5.1 is: "Proposed transportation improvements will be coordinated with existing land uses and the Future Land Use Map." TCE Action 5.1.1 is: "Changes to the Future Functional Classification Map (Map F) that would change proposed rights-of-way requirements, will be developed in accord with adjacent land uses as well as bin accord with the City's overall needs." TCE Action 5.1.2, which was amended at least to add the language concerning the Mid-Point Bridge, states: No new transportation corridors or improvements will be permitted which could preclude those indicated on the Major Thoroughfare Map (Map G)--unless, with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. Any proposed amendment to the Thoroughfare Plan must be consistent with all Traffic Circulation policies as well as other Comprehensive Plan Elements. TCE Policy 5.2 is: "Any transportation improvements proposed for McGregor Boulevard shall consider its qualities as a special historic and scenic corridor." Action 5.2.1 provides that, except under certain conditions, there shall be no new street connections, road connections, road intersection, or the widening of any existing, intersections and no overpasses or underpasses, made either with, under, or over McGregor Boulevard or any alteration of the physical dimensions, appearance, or location of this corridor . . . However, new street connections, road connections, road intersections, or widening of any existing intersections and overpasses or underpasses may be made either with, under, or over McGregor Boulevard or alteration of the physical dimensions, appearance, or location of this corridor with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, if the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. At least the language following the ellipses is the result of a plan amendment. TCE Policy 5.3 is: "Transportation improvements proposed in or near residential arenas will contain appropriate mitigation measures." TCE Objective 6 is: "To obtain the cooperation and active participation of all responsible governments in the coordinated implementation of the metropolitan transportation plan." TCE Policy 6.1 is: "All proposed major transportation improvements, including all improvements which extend beyond the limits of the City, will be coordinated with the other affected jurisdictions prior to City approval of the improvement." TCE Action 6.1.1 is: "The City will participate in the committees of the Metropolitan Planning Organization to ensure that this policy is met." TCE Policy 6.2 is: "The City will actively participate in the development and review of transportation improvements proposed by other jurisdictions." TCE Action 6.2.1 is: "The City will participate in the County's Planning Technical Advisory Committee to ensure that this policy is met." Intergovernmental Coordination Element (ICE) Goal 2, which, together with its objectives and policy, was added by amendment, states in its entirety: It is the goal of the City of Fort Myers to resolve the conflict with Lee County. and the City of Cape Coral concerning the Mid-point Bridge through ban independent, objective, equitable, efficient and binding process as an alternative to the litigation in Lee County vs. City of Fort Myer, Circuit Court Case No. 88-5598 CA-RWP pending in the 20th Judicial Circuit for Lee County, that will ensure that all relevant factors and concerns are fairly and objectively evaluated. Objective 1. In order to achieve the City's goal of resolving the conflict over the proposed Mid-Point Bridge, it is the objective of the City of Fort Myers to abate the pending litigation between the County and the City in regard to the Mid-Point Bridge and to enter into a binding conflict resolution process that will provide a balanced determination of the need for and appropriateness of the proposed Mid-Point Bridge in terms of the following factors: county-wide transportation needs; the comparative effectiveness and cost benefit of reasonable alternative transportation solutions; social, cultural economic and environmental impacts on the City of Fort Myers and Lee County; and long-term financial feasibility and cost-effectiveness. Policy 1.1 It is the policy of the City of Fort Myers in regard to the conflict over the proposed Mid-Point Bridge to submit the conflict to a conflict resolution process that contains the, following elements: An objective, independent decision maker who has substantive, and/or technical familiarity with land use and transportation issues; A fair and reasonable opportunity for all affected persons including the City of Fort Myers to submit substantive information in regard to the merits of the proposed Mid- Point Bridge; A resolution of the conflict and the merits of the proposed Mid-Point Bridge based on the following principles: the proposed Mid-Point Bridge should not be constructed if it can be reasonably demonstrated that implementation of the comprehensive plans of Lee County, the City of Fort Myers and the City of Cape Coral will result in a shift in land use patterns, transportation management systems, or increased modal splits that will reduce the projected number of rivers crossings so that there is no need for the proposed Mid-Point Bridge; the proposed Mid-Point Bridge should not be constructed if peak hour levels of service on existing and committee river crossings, with or without operational improvements such as reversible lanes, will provide an acceptable level of service; the proposed Mid-Point Bridge should not be constructed if there are reasonable alternatives that have the following characteristics: reduced or equal costs; equal or superior transportation capacity too serve county wide transportation needs; arid reduced social, cultural, economic or environmental impacts on the residents of the City of Fort Myers. For the purposes of this paragraph, reasonable alternatives Shall include, but not be limited to, river crossings at other locations, a county-wide beltway or circumferential road system and non-geometric improvements such as transportation management systems, reversible lanes and the like. 4) Any determination-of fact shall be based on a standard of preponderance of the evidence. The Future Land Use Element (FLUE) Objective 1 is: "Coordinate land development with the public and private provision of community services and facilities, soil suitability, and topography." FLUE Objective 2 is: "Protect distinct functional areas from intrusion and encroachment of incompatible uses." FLUE Objective 3 is: "Protect significant natural and historic resources from intrusion and encroachment of incompatible uses." FLUE Objective 4 is: "Ensure a balanced distribution and allocation of the various land uses in newly developing areas." FLUE Objective 5 is: "Revitalize declining areas through rehabilitation, redevelopment, and infill strategies as appropriate." Map C, which accompanies the FLUE, designates the following corridors as part of the "corridor improvement strategy": U.S. 41 on both sides of Colonial, Evans Avenue north of Colonial to the river, Fowler south from the river but only about halfway to Colonial, and three east-west routes including Palm Beach Boulevard, which runs along the river, from Interstate 75 to the proposed landfall of the Metro Bridge. Map C designates the following corridors as part of the "corridor conscious" development strategy. Less in need of redevelopment than those named in the preceding paragraph, the corridor conscious corridors include Colonial Boulevard, Winkler Avenue, Summerlin Road south of Colonial Boulevard, Metro Parkway north and south of Colonial and in the vicinity of the Metro Bridge, and Palmetto, Marsh and Ortiz Avenues on both sides of Colonial. FLUE Policy 5.2 is for the central business district to be "redeveloped as the pre-eminent regional center." Provisions of Regional Plan Goal 19, Regional Issue B, of the Regional Plan concerns transportation and growth management. Policy 1 is: All regional transportation systems should be designed, upgraded or maintained to enable roadways to operate at, or above, a service level acceptable to the agency with land use authority, with operational maintenance responsibility, and with the affected surrounding local government, when such standards incorporate the minimum standards set by the agency having operational, and maintenance responsibility for that public facility, unless designated a special transportation area by those agencies and governments. Policy 3.d. is that transportation improvements are to be "related to seasonal and area needs in order to minimize disruption of the existing road network during periods of highest use." Policy 6 is: "Transportation plans should preserve, to the greatest extent possible, the integrity of residential areas." Policy 9 is: `"Transportation investments should be directed in such a way so that they contribute to efficient urban development." Goal 20, Regional Issue A, of the Regional Plan addresses intergovernmental coordination. The policies suggest the improvement of intergovernmental coordination through the use of interlocal agreements, technical assistance, and solicitation of review and comments. Regional Issue D speaks in stronger terms, but only requires, by 1996, that "each jurisdiction will have enacted the appropriate administrative arrangement to ensure coordination occurs." Pursuant to this Issue, Policy D states: "Mediation of jurisdictional disputes should be pursued by local governments as a first alternative to judicial action." Goal 16 of the Regional Plan concerns land uses. Regional Issue A relates to balanced and planned development. The first policy is: "The plans of all jurisdictions should promote balanced and planned development." Policy 3.e. suggests that comprehensive plans "ensure existing urban areas are protected from the adverse impacts of future growth." Policy 3.i. suggests that plans "provide for effective intergovernmental coordination methods for siting public and private locally unpopular land uses." Policy 3.1. suggests that plans "provide for new central business districts, as needed by urban growth." Policy 9 states: Comprehensive plans and land development regulations should provide incentives to develop and redevelop land downtown including allowing mixed uses, higher densities, shared parking, and improved vehicular access. Regional Issue C, which concerns the problem of already-platted, vacant lands in the region, contains Policy 3, which states: "Additional urban uses and protection of threatened resources within existing platted areas should be pursed through reassembly or other techniques." Policy 8 adds: "Each local government should provide alternatives to traditional development of platted lands." The Regional Plan does not recommend the construction of the Mid- Point Bridge. Map IV-10 of the volume entitled, "Description of the Region," identifies the bridge and corridor as a regional roadway "not yet constructed." Neither the map nor the surrounding text suggests that the Regional Planning Council has determined that the bridge and corridor should be built. /22 Ultimate Findings of Fact Sorting Data and Analysis TCE Policies 5.1, 5.2, and 5.3, and the implementing actions thereunder, prohibit the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. Lee County is unwilling to agree to the conditions set forth in ICE Goal 2. The refusal is justified because, for reasons set forth below, the offer to arbitrate contains an unreasonable condition. The Plan's treatment of the Mid-Point Bridge and corridor can be characterized as an intentional omission of these improvements from any road network for the city, and the Plan's offer to arbitrate, in effect, leaves the resolution of the Mid-Point Bridge dispute to the courts or voters. However, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the omission of the Mid-Point Bridge and corridor from the Plan is not supported by data and analysis. The data and analysis contained in the 1989 Data and Analysis and 1990 Data and Analysis are sparse in terms of support for the omission or inclusion of the bridge and corridor. Ft. Myers failed to incorporate into its data and analysis, verbatim or by reference, the best "available existing data, which were those generated by Lee County bin preparing the EIS, especially Composite Exhibit 4 of the EIS. However, the 1989 Data and Analysis and 1990 Data and Analysis contain analysis in support of the omission of the Mid-Point Bridge and corridor. The analysis consists mostly of consideration of the effect of the proposed project on various provisions of the Plan and the conclusion that the project would be inconsistent with these provisions. The Ft. Myers' planning strategy emphasizes more than the preservation of the historic and aesthetic values of McGregor Boulevard and nearby Rio Vista Way. The analysis justifies the omission of the ride and corridor by at least implicitly construing the Plan as part of an urban containment strategy that, if successful, benefits the region by promoting existing, close-in commercial uses and promoting the attractiveness of Ft. Myers as a place to live. This analysis finds some support in the data concerning the noise and visual impact of the corridor upon nearby residential areas. The most important sources of data and analysis in support of the omission of the Mid-Point Bridge and corridor are the Draft EIS and EIS, especially Composite Exhibit 4. Although Ft. Myers was aware of these data, it failed to include and analyze them, in the 1989 Data and Analysis or 1990 Data and Analysis. The most likely explanation for this omission is that the exclusion of the bridge and corridor was a foregone conclusion at the beginning of the planning process, and, until plan litigation became imminent Ft. Myers felt no need to explicate its opposition to the project. However, for reasons set forth in the Conclusions of Law, the sources of data and analysis available to support the plan are not limited to those identified or even actually relied upon by Ft. Myers in the plan-adoption process. The data and analysis contained in the Draft EIS and EIS support the exclusion of the Mid-Point Bridge and corridor because this project would tap, to some degree, latent travel demand and would result, to , a significant extent, in more traffic on Ft. Myers' roads. The corridor would also displace, at least in the short term, viable commercial uses whose proximity to downtown Ft. Myers and nearby residential areas is useful in maintaining a mixture of uses in Ft. Myers. The data and analysis do not, however, address the possibility of renewed commercial development along the corridor. It is therefore impossible to determine if the data and analysis suggesting the possible displacement of existing commercial uses are offset by data and analysis indicative of a possible revitalization of aging commercial uses. In short, data and analysis exist to support a decision by Ft. Myers to omit the bridge and corridor, and data and analysis also exist to support a decision by Ft. Myers to include the bridge and corridor, had it wished to do so. Little, if any, data and analysis exist that comprehensively net the benefits of the Mid-Point Bridge alternative against the benefits of the no-action or Iona Cove Bridge alternative. In large part, the conflict is between transportation and land use strategies whose competing sets of underlying data and analysis have not been evaluated in a process designed to identify the superior data and analysis from an appropriately broad perspective. In such a proceeding, no deference could be given to the planning preference of any individual local government. This is the first shortcoming of the EIS process in which due deference to the prerogative of local governments in local land use planning provided a procedural advantage to the proponents of the project, Lee County and Cape Coral. In any event, the conclusions of the EIS are supported by its data and analysis to the extent that the Coast Guard concludes that the decision of Lee County and Cape Coral to build the bridge is reasonable. The conclusions of the EIS that the other alternatives, especially the no-action, are unreasonable from a regional perspective, if even relevant to the present case involving only Ft. Myers' Plan, are based predominantly upon transportation considerations. These conclusions clearly are not based upon a comprehensive, objective, and informed review of comprehensive land use strategies, of which transportation strategies are a part. To the extent that the EIS concludes that the no-action alternative is an unreasonable land use strategy, such a conclusion is unsupported even by the data and analysis contained in the EIS. To some extent, Lee County and especially Cape Coral, although responsible for preparing nearly all of the relevant data in this case, have not sufficiently focused their data and analysis so as to justify a finding that the Plan's omission of the bridge and corridor is not supported by the data and analysis. The Lee County and Cape Coral data and analysis supporting the Mid-Point Bridge and corridor justify a transportation strategy linking more efficiently the bedroom communities to the east and west with each other and to shopping and jobs. By contrast, the omission of the bridge and corridor is based on more comprehensive land use planning considerations. Data and analysis supporting the exclusion of the Mid-Point Bridge and corridor address an overall land use strategy, to which transportation planning is properly subordinated. To some extent, the differing emphases reflect that Ft. Myers is a more established community than the fast- growing Cape Coral and Lee County. To some extent, the increased emphasis upon overall land use planning by Ft. Myers, as opposed to the focus upon transportation planning by Cape Coral in particular, may reflect varying planning philosophies. Cape Coral has suffered from the lack of an effective land use strategy to overcome the burdens of urban sprawl, which has engendered a monolithic land use dominated by low-density residential. The Cape Coral plan and data and analysis point to some improvement dealing with this problem. But to meet the burden of showing that the Ft. Myers strategy, which excludes the bridge and corridor, is supported by data and analysis, Cape Coral must offer data and analysis more effectively addressing land use planning issues, rather than merely transportation planning issues. Cape Coral cannot meet its burden in this case by presenting data and analysis supporting a transportation strategy of linking its internal parkways to bridges and building more bridges. Although such data and analysis may support Cape Coral's planning solutions, they are not so compelling as to displace the data and analysis presently supporting Ft. Myers' land use strategy of preserving a viable mixture of uses. The support for Ft. Myers' land use strategy excluding the Mid-Point Bridge and corridor is not overwhelming in terms of data and analysis. The increased traffic on city roads, noise pollution, and the visual impact support the decision. Other factors, such as impaired physical accessibility, commercial decline, and the extent of the negative impact upon residential integrity, do not so clearly support the decision. Even if present conditions clearly were to support the decision to exclude the bridge and corridor, changing conditions could later deprive Ft. Myers' decision of support from the data and analysis. New developments, such as Omni Park, could leave Colonial and nearby collectors, as well as McGregor, choked in traffic during nonpeak season, nonpeak hours. The decline of commercial uses along the western part of Colonial may in time require revitalization through redevelopment If so, imaginative planning solutions may :,"identify corridor-connected uses whose scale and type promote, rather than threaten, Ft. Myers' status as a viable mixed-use center. If sufficiently compelling under then-existing conditions, such solutions may even compel a bridge and corridor. But the data and analysis do not portray these conditions presently. Internal Consistency Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Action 5.2.1 is inconsistent with FLUE Objective 1. TCE Action 5.2.1 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. FLUE Objective 1 is, to coordinate land development with the adequate provision of facilities, which include roads. FLUE Objective 1 and its policy cluster require adequate levels of service for facilities (presumably for which concurrency is required), the availability of land for public facilities, development patterns that maximize, the use of existing public facilities, and coordination with Lee County and the Florida Department of Transportation regarding tide intensity of land uses and their location relative to collectors and arterials. There is nothing inherently contradictory between TCE Action 5.2.1 and FLUE objective 1. FLUE Objective 1 does not require the construction of the Mid-Point Bridge and corridor, just as it does not require that downtown segments of U.S. 41 or Fowler be widened to 12 lanes if there is sufficient traffic demand. FLUE Objective 1 does not requiring reducing the planning exercise to promising invariably to widening existing roads or building new roads in urban areas upon the identification of traffic congestion. Taking a wider view, FLUE Goal 1 is to ensure the achievement of acceptable "general patterns and relationships (distribution, allocation, and intensity) of all land uses" in the city. The record does not establish that the omission of the Mid-Point Bridge and corridor is inconsistent with FLUE Objective 1. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1, on the one hand, are inconsistent with TCE Objective 6, Policy 6.1, Auction 6.1.1, Policy 6.2, and Action 6.2.1, on the other hand. TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1 will bet referred to as Modified TCE Objective 5. Modified TCE Objective 5 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant tot the binding arbitration described in ICE Goal 2. ICE Goal 2, Objective 2, arc Policy 1.1 set the conditions of such arbitration. With one exception, these conditions are reasonable. The goal to obtain a fair, objective, and binding resolution of the bridge dispute outside of court is salutary. The objective is also reasonable, assuming that the reference to the socioeconomic and environmental, impacts on Ft. Myers and Lee County includes Cape Coral. Policy 1.1 establishes specific conditions. The first calls for an objective, disinterested decision-maker with expertise in land use and transportation planning. The second condition ensures that all parties have a chance to be heard. The fourth condition provides that the standard of proof is the preponderance of the evidence. These conditions are obviously reasonable. The substantive guidelines for the decision-maker are set forth in ICE Policy 1.1(3). The first guideline prohibits the bridge if the land use plans of Cape Coral, Ft. Myers, and Lee County can be implemented so as to reduce the number of river crossings by shifting land use patterns, introducing or expanding transportation management systems, or increasing modal splits. The second guideline prohibits the bridge if existing and committed river crossings will provide an acceptable level of service regardless of operational improvements such as reversible lanes. In general, these conditions are reasonable. The effectiveness of transportation management systems and operational improvements, especially reversible lanes, should be considered as relatively inexpensive alternatives to the construction of a new bridge and corridor. Changing land use patterns presumably requires each local government to address through comprehensive planning any deficiencies that it may suffer in terms of a lack of mixed land uses. The guideline does not specify the extent to which a local government must remediate a lack of mixed uses. For example, it might be effective but prohibitively costly for Cape Coral to solve its mixed land use problems by purchasing and reassembling vacant and developed platted land suitable for commercial or industrial development. The reasonableness of the guideline of changing land use patterns depends upon its interpretation. The third guideline, prohibits the construction of the Mid-Point Bridge if "reasonable" alternatives exist at reduced or equal costs, with equal or superior transportation capacity to serve County-wide transportation needs, and with reduced socioeconomic and environmental impacts on Ft. Myers residents. The factors of reduced or equal costs and equal or superior transportation capacity are reasonable and address regional concerns. The guideline focusing on the socioeconomic and environmental impacts of Ft. Myers' residents exclusively undermines the viability of ICE goal 2 and Ft. Myers' putative "offer" to submit to binding arbitration. Just as it is reasonable for Ft. Myers to concern itself exclusively with the socioeconomic and environmental welfare of itself and its residents, so it is reasonable for Lee County and Cape Coral to concern themselves with the socioeconomic and environmental welfare of themselves and their residents. This guideline is unreasonable and effectively relegates the parties to whatever judicial or political solutions that may be available. Notwithstanding the failure of the offer to arbitrate, Modified Objective 5 is not inconsistent with TCE Objective 6 and its policies and actions. The latter provisions do not preclude the judicial option for this longstanding dispute. TCE Objective 6 is to obtain the cooperation of all governmental entities in the implementation of MPO plan. Except for TCE Policy 6.1, the policy and actions under this objective require merely participation in transportation planning processes. The arbitration process described in Modified TCE Objective 5 does not preclude participation in transportation planning processes; Modified TCE objective 5 merely identifies one approach to resolving disputes not resolved by normal transportation planning processes. Policy 6.1 requires the "coordination" of "major transportation improvements" with other affected governmental entities. The simple resolution of this issue is that the policy requires coordination only of projects that Ft. Myers proposes to undertake, not of projects sponsored by other entities that Ft. Myers proposes to ignore or resist. Even if the omission of a project sponsored by others triggers the coordination requirement of Policy 6.1, Modified TCE Objective 5 is not inconsistent with such a requirement. Coordination does not require the successful achievement of a consensus for each transportation project that each local government or regional entity may propose. "Coordinate" means: To place in the same order, class, or rank. To arrange in the proper relative position. To harmonize in an action or effort. American Heritage Dictionary. In this case, Ft. Myers participated in the normal transportation planning processes. Consensus was reached as to a considerable number of road projects, although the Mid-Point Bridge and corridor are extremely large projects in the County. "Coordinate" does not mean "approve," and Ft. Myers is not required by TCE Policy 6.1 to obtain the approval of all other governmental entities for projects proposed by Ft. Myers or to give its approval for projects proposed by any or even all of the others. The facts of this case do not reveal a series of disputes involving numerous proposed road projects. The three local governments have not had systemwide impasse that defeats their ability to design and implement a coordinated transportation network. Although the Mid-Point project is of considerable magnitude, the Major Thoroughfare Plan--2010 does not prevent the transportation plans of Lee County and Cape Coral from working. The size of a project proposed by a majority of area local governments does not alone compel a lone opponent to capitulate to attain intergovernmental coordination. Neither does the inclusion of the Mid-Point Bridge and corridor in the financially Feasible Plan compel Ft. Myers to accede to the project or risk inconsistency with the intergovernmental coordination provisions of its Plan. The MPO's data and analysis support its adoption of the Mid-Point Bridge and corridor. But the purpose of the MPO is not to restate the positions of its constituent members and, even if they are supported by data and analysis, thereby compel dissenters to conform their plans to the plans of the majority. The MPO has served a valuable purpose in this case by collecting and disseminating important data and providing the parties with a forum in which to exchange their data and analysis; inform and, if necessary, revise their positions; and, if possible, form a consensus. Like Lee County and Cape Coral, Ft. Myers participated in this process in good faith and thereby engaged in intergovernmental coordination. The unreasonableness of requiring local governments invariably to conform their plans to those of the MPO is illustrated by another factor in this case. The Financially Feasible Plan describes a road network that is financially feasible only if existing available revenues are nearly doubled. The present facts do not support a construction of intergovernmental coordination that mandates strict compliance with a Financially Feasible Plan that requires local governments to raise additional revenues. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 1. TCE Objective 1 is to meet the city's transportation needs through a "balanced system" of road, rail, air, boat, bicycle, pedestrian, and public transportation. For the reasons set forth above, the preclusion of the Mid-Point Bridge and corridor does not preclude the attainment of such a balanced system. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 2, Policies 2.4 and 2.6, and Standard 2.6.3. TCE Objective 2 is to "maintain or provide adequate road capacity to meet present and anticipated future needs." Policy 2.4 is to construct new roadway corridors when existing corridors cannot meet the need. Policy 2.6 is for the city to "pursue acceptable level of service standards for its roadways, and coordinate the standards with Lee County and the Florida Department of Transportation." Standard 2.6.3 acknowledges constraints on capacity improvements for McGregor and the central business district and adopts a peak season, peak hour level of service for these roads of "maintain and improve." The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with these provisions. The evidence shows that traffic would actually increase on city roads with the Mid-Point Bridge. Consistency with Regional Plan Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the TCE, in omitting the Mid-Point Bridge and corridor, is not consistent with the Regional Plan. The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with the Regional Plan considered as a whole. The Plan's treatment of the bridge and corridor is consistent with provisions in the Regional Plan regarding balanced land uses and intergovernmental coordination. Consistency with Other Minimum Criteria For the reasons set forth above, Lee County and Cape Coral have failed to prove by, a preponderance of the evidence that the Plan is not consistent with the criterion of, "to the maximum extent feasible as determined by the local government," analysis compatible with the plans of the Florida Department of Transportation and MPO, as well as the criteria of analysis of projecting levels of service for roads based on the FLUM, the need for new roads, and the adopted level of service standards and plans of the Florida Department of Transportation and MPO. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that TCE Policies 5.1, 5.2, and 5.3, with their implementing actions, in omitting the Mid-Point Bridge and corridor, are not consistent with the criteria of an objective coordinating transportation planning with the metropolitan planning organization and a future traffic circulation map showing the location of arterial and limited access facilities. The issue of coordination has already been addressed. The Major Thoroughfare Plan--2010 is consistent with the latter criterion. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the FLUE or TCE Action 5.2.1 is not consistent with the criterion of discouraging the proliferation of urban sprawl. The strategy of urban containment is not limited to planning for undeveloped or underdeveloped areas. The maintenance of existing mixed-use centers also assists in deterring urban sprawl. By preserving and enhancing close-in residential areas, some of the pressure toward urban sprawl may be alleviated. The omission of the Mid-Point Bridge and corridor may be viewed as part of a reasonable planning strategy designed to promote the mixture of uses presently characterizing the city. For the reasons set forth above, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the ICE is not consistent with the criteria of establishing principles and guidelines to be used in attaining coordination with the plans of adjacent municipalities and the county, ensuring coordination in setting level of service standards for public facilities with any governmental entity with operational or maintenance responsibility for such facility, and resolving conflicts with other local governments through the Regional Planning Council's informal mediation process.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a final order determining that the Ft. Myers plan, as amended, is in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. ENTERED this 7 day of January, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7 of January, 1992.
The Issue At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundary of the Villages of Westport Community Development District (CDD, or District) filed on December 23, 2005 (Petition), as amended and supplemented.
The Issue Whether Sugarloaf Shores Section C Extension is a "major development" as defined by Section 6-222, Monroe County Code, and (in connection with Intervenor's amended plat proposal and dredge and fill application) should undergo major development review pursuant to Chapter 6, Article VII, Monroe County Code.
Findings Of Fact Sugarloaf Shores Section C Extension is a subdivision located in Section 2, Township 67 South, Range 27 East, Sugarloaf Key, Monroe County, Florida. (Prehearing Stipulation, Para. (e), No. 1). The plat of Sugarloaf Shores Section C Extension, shows 76 residential building lots and five deadend canals (connecting to Upper Sugarloaf Sound or Cross Key Channel) and a canal of approximately 900 feet paralleling the mean high water line of Upper Sugarloaf Sound; it was approved by Monroe County on July 5, 1972, and is recorded in Monroe County Plat Book 6, page 93. The subdivision contains 38.9 plus acres. (Prehearing Stipulation, Para. (e), No. 2; Joint Exhibit No. 1). Lloyd A. Good, Jr., purchased Sugarloaf Shores Section C Extension on October 8, 1973, and is the current owner and developer of the subdivision. (Prehearing Stipulation Para. (e), No. 3). At the time of his purchase, the land had been cleared. An east-west canal of approximately 600' in length and 50' in width had been excavated but unopened to Upper Sugarloaf Sound. A north-south canal or borrow pit of approximately 200' in length and 50' in width had also been excavated. Fill obtained from these excavations had been placed on the property. He subsequently placed approximately 800 yards of additional fill on the Southeast corner of the property. (Testimony of Good) The platted subdivision is landward of the mean high water line and contains a mixture of upland and wetland vegetation. A berm rises along the front of the property between Allamanda Drive and the existing (plugged) canal. The northern part of the property contains white, black, and red mangroves, red grape, a hardwood hammock, and a salt water marsh characterized by key grass, salicornia, and white and black mangroves. The western part of the property contains fresh water wetlands characterized by spike rush. The area south of the existing canal contains more mangroves and is permeated by transitional wetland or fresh water wetland plant species, with the higher elevations containing Lower Keys hardwood hammock species such as poison wood, black tooth and Jamaican dogwood. The salt marsh and black mangroves are subject to inundation from tidal exchange; the fresh water wetlands are subject to rain water flooding. (Testimony of Dennis) In 1973, Lloyd Good was familiar with regulatory restrictions on the use of wetland areas. As a Philadelphia attorney, he had "practiced in wetland areas in New Jersey . . . and . . . knew that the concept of deadend canals at that time was not feasible." (TR.65) He had decided to amend the original plat (and change the development plan) even before he purchased Sugarloaf Shores Section C Extension because he believed that under existing environmental laws the platted deadend canals would not be permitted. (TR.65) So he hired engineers to design a development plan acceptable to the U.S. Army Corps of Engineers and other governmental agencies having regulatory jurisdiction over dredge and fill activities in wetland areas. Because of other business interests, he temporarily halted work on the project between late 1973 and 1975. From 1975 to 1980, he worked with permitting officials from federal, state, and local regulatory agencies in an effort to devise a development plan for Section C Extension which would meet regulatory standards. In 1980, he hired a consultant to obtain the necessary federal, state, and local permits needed to carry out his revised development plan. Monroe County permitting officials told him not to apply for any local dredge and fill, or land clearing permits until he first obtained the required federal and state permits. (Testimony of Good) In 1980, Lloyd Good applied for a joint U.S. Army Corps of Engineers/Florida Department of Environmental Regulation permit to perform the dredging and filling necessary to carry out his revised development plan. In 1983, after extensive negotiation, both agencies issued him the required dredge and fill permits. The Department of Environmental Regulation permit was conditioned on Mr. Good obtaining Monroe County approval of an amended plat of Sugarloaf Shores Section C Extension conforming to the federal and state permits. (Joint Exhibit No. 21, Testimony of Good) During his initial discussions with Monroe County officials in 1981, Lloyd Good proposed rezoning the property to permit multiple-family residences; if rezoned, he expected that the project would be required to undergo "major development" review as defined by the Monroe County Code. But after meeting with members of the Sugarloaf Property Owners Association and discovering that they were violently opposed to multi-family development," (TR.73) he decided to retain the single-family nature of the original development and not seek a zoning change. Monroe County officials told him that by retaining the original zoning his development activities would not be subject to the "major development" review process. (Testimony of Good) On May 10, 1983, Lloyd Good submitted an application to Monroe County for authorization to dredge 42,400 plus/minus cubic yards of submerged lands, wetlands and uplands for roads and fill needed to develop residential lots within the Sugarloaf Shores Subdivision in accordance with his newly revised development plan. His application conformed to the federal and state permits already issued. (Prehearing Stipulation Para. (e) No. 4; Joint Exhibits No. 2 and 6) Mark Robinson, the county biologist assigned to review the dredge and fill application and prepare a biological report, asked Lloyd Good to have the state and federal permits amended to address several of his concerns. Mr. Good obtained the requested permit amendments, then asked that the biological report be completed. (Testimony of Good) On August 25, 1983, Dr. Jeffrey M. Doyle, Director of the Monroe County Planning and Zoning Department, issued an administrative ruling declaring Sugarloaf Shores Section C Extension to be a "major development" under the Monroe County Code. As grounds, he cited Section 6-222(1), which defines a "major development" project as a subdivision containing five acres or more of land or water, and Section 6-222(7)(b), which grants discretionary authority to zoning officials and the County Commission to designate an activity or use as a "major development" project if it "reflects sufficient scope, scale and size to justify its being designated . . . in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval." Under his administrative ruling, the dredge and fill application would be subject to the comprehensive review procedures which apply to "major developments." (Joint Exhibit Nos. 32, 5) On September 21, 1983, Lloyd Good appealed Dr. Doyle's administrative ruling to the Monroe County Board of Adjustment. The issue before the Board of Adjustment (and subsequently before the County Commission) was whether Mr. Good's proposed dredge and fill activity (for the purpose of constructing the revised subdivision) was a "major development" as defined by the Monroe County Code, and whether compliance with "major development" review procedures was required before county dredge and fill permits could be issued. (Prehearing Stipulation, Para. (e) No. 6; Joint Exhibit No. 8). On November 2, 1983, the Monroe County Board of Adjustment upheld Dr. Doyle's decision and determined that the Section C Extension subdivision (to be created by the dredging and filling) was a "major development" under Chapter 6- 222(7)(b), Monroe County Code. (Prehearing Stipulation, Para. (e) No. 7; Joint Exhibits No. 11 and 12). On November 23, 1983, Lloyd Good appealed the Board of Adjustment's decision to the County Commission. (Prehearing Stipulation, Para. (e) No. 8; Joint Exhibit No. 13). On January 27, 1984, the County Commission, sitting as the Board of Appeals, adopted Resolution No. 042-1984, reversing the Board of Adjustment's decision of November 2, 1983. The resolution (giving no specific reasons for the reversal) remanded the matter to the County Planning and Building Department for normal processing of the related dredge and fill permits. It did not grant or deny any development or dredge and fill permit; it simply ordered that Lloyd Good's dredge and fill application would be reviewed under normal permitting procedures, not the more comprehensive procedures applicable to "major development" projects. (Prehearing Stipulation, Para. (e), No. 9; Joint Exhibit No. 14) The DCA did not appeal this resolution to a circuit court (within 30 days of its adoption) or to the FLAWAC (within 45 days of its transmission). The DCA did not challenge or question the County Commission's decision (that the proposed dredge and fill activities would not undergo "major development review") until it appealed the Commission's subsequent resolution granting the dredge and fill permit. (Testimony of Good, Dennis) On June 4, 1984, Lloyd Good submitted to the Monroe County Building Department 13 copies of a proposed amended plat for the Sugarloaf Shores Section C Extension. The amended plat incorporated his new development plan and reflected the dredging and filling approved by state and federal permits. (Prehearing Stipulation, Para. (e), No. 10; Joint Exhibit Nos. 18 and 21). On July 13, 1984, the County Commission adopted Resolution No. 195- 1984 approving Lloyd Good's application to dredge and fill. The resolution was transmitted to the DCA on July 27, 1984, which appealed it to the FLAWAC by notice filed September 10, 1984. 1/ The appealed resolution directs that the applied-for permit be issued subject to Lloyd Good's subsequent filing of an amendment to the Sugarloaf Shores Section C Extension plat. (Prehearing Stipulation, Para. (e), Joint Exhibit No. 19) Thereafter, on September 7, 1984, the County Commission adopted Resolution No. 224-1984, approving an "Amended Plat for Sugarloaf Shores Section C Extension." The DCA also appealed this resolution to FLAWAC by separate notice filed October 31, 1984. (Prehearing Stipulation, Para. (e), No. 12; Joint Exhibit Nos. 21, 22) The amended plat approved by Resolution No. 224-1984, replaces the original plat with a fundamentally new and different development plan. It alters the location of roads; eliminates the proposed deadend canals (except for the existing "plugged" canal); provides for wetland preservation areas in Tracts A, B, C, D, and F, and for the construction of a six-acre boat basin fronting the property on Upper Sugarloaf Sound; and reduces the number of single family residential lots from 76 to 55. RU-1 zoning is retained. The new development plan is preferable to the original plan in terms of environmental impact. The amended plat was processed in the same manner as all new plats in Monroe County. (Joint Exhibits No. 1, 21; Testimony of Dennis) The record is devoid of any documented expenditures made by Lloyd Good in reliance on County Commission approval of the original or amended plat.
Recommendation Based on the foregoing it is RECOMMENDED that pursuant to Section 380.07(4), Florida Statutes (1983), the Florida Land and Water Adjudicatory Commission enter an order: Reversing Resolution Nos. 195-1984 and 224-1984, because these resolutions approved development activities prior to their undergoing the "major development" review required by Section 6-222(1) and (6), Monroe County Code, as incorporated by Rules 27F-9.06 and 27F-9.17, Florida Administrative Code; Declaring the proposed Sugarloaf Shores Section C Extension a "major development" within the meaning of Section 6-222(1) and (6), Monroe County Code, and requiring the two development activities which would create it to undergo "major development" review prior to any approval; and Declaring that after undergoing the required "major development" review, these development activities would be eligible for approval, but that the disposition of the appeals in the instant cases does not reach the substantive issue of whether the proposed development should ultimately be approved, or disapproved. See, Section 380.08(3), Florida Statutes (1983). DONE and ORDERED this 21st day of January, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1986.
