Findings Of Fact The Resource Recovery Facility The purpose of the proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,352 tons of refuse each day, and generate up to 62.5 megawatts of electrical power. The ultimate capacity of the facility is 3,300 tons of refuse each day, and a generating capacity of 96.1 megawatts. The proposed RRF complex will include a gatehouse and weigh station, refuse receiving and handling building, turbine generator building, administrative building and two landfills for the disposal of ash residue and non- processable solid waste. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse and receiving building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is a predominantly undeveloped 248-acre parcel of land situated at the southeast intersection of US 441 (State Road 7) and State Road (SR) 84, an unincorporated area of Broward County. The site is bounded on the north by the right-of- way for I-595, the northerly part of its east boundary by the proposed Ann Kolb Park, the southerly part of its east boundary and the south by the South Fork of the New River Canal (New River Canal), and the west by US 441. The uses surrounding the site are mixed. Located east of the site, and south of the proposed Ann Kolb Park, is a large fossil fuel electric generation facility owned by Florida Power & Light Company (FP&L). To the south, across the New River Canal, is a mixed residential- commercial area of single family residences, duplex residences, and marine-oriented businesses (marinas and fish wholesalers). To the west of US 441 is a mixture of light, medium, and heavy industry, including industrial office space, auto salvage facilities and prestressed concrete pouring yards. North of the right-of-way for I- 595, and SR 84, is a mixture of strip commercial and residential usage. Although the site itself is predominantly unoccupied pasture land, some of its lands have been developed. The southern portion of the site, abutting the New River Canal, is occupied by a marine engineering firm which operates dry dockage and related facilities (heavy industrial use). The other uses currently existing on the site are for a nursery and the sale of prefabricated sheds. Bisecting the site is a parcel of land presently being developed by the City of Fort Lauderdale (City) for a sludge composting facility. Broward County proposes to locate the RRF south of the City's facility, and the landfills north of the City's facility. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan) and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF, with attendant land fill, is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans. Prior to rezoning, various portions of the site were zoned A-I Limited Agricultural, B-3 General Business, M-3 General Industrial, and M-4 Limited Heavy Industrial. Permitted uses ranged from cattle and stock grazing (A-1) to asphalt paving plants, junk yards and the storage of poisonous gas (M-4). On March 16, 1984, the Board of County Commissioners of Broward County approved the rezoning of the site to a Special Use Planned Unit Development District (PUD), and approved the RRF conceptual site plan. The proposed RRF, and attendant landfill, constitute a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, are permitted nonresidential uses. The Department of Community Affairs, the Department of Environmental Regulation, and the South Florida Water Management District concur that the proposed RRF appears to be consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. South Broward Citizens for a Better Environment, Inc. (SBC) was the only party to contest the consistency of the proposed RRF with existing land use plans and zoning ordinances. SBC asserted that the proposed RRF violates: (1) the coastal zone protection element of the Broward County Comprehensive Plan, because the environmental impact assessment required by that element of the plan was inadequate or not done, (2) the urban wilderness inventory guidelines of the Broward County Comprehensive Plan, because the environmental effects of the proposed RRF on the area proposed to be designated as an urban wilderness area (proposed Ann Kolb Park) would outweigh the benefits of the project, and (3) Section 13 of Ordinance numbers 84- 6(2) and 84-7(2), which approved the rezoning for the site, because the impact assessment required by the Ordinances had not been prepared. While the coastal zone protection element and urban wilderness inventory guidelines of the Broward County comprehensive plan were germane to Broward County's decision to rezone the site and approve the development, they are not pertinent to this land use hearing. Broward County's decision is final, and these proceedings do not provide a forum to collaterally attack it. The relevance of SBC's assertions aside, the evidence presented established that the proposed RRF did not violate the coastal zone protection element, the urban wilderness inventory guidelines, or any other element of the Broward County Comprehensive Plan. SBC's assertion that the proposed RRF will violate Section 13 of the rezoning ordinances is ill- founded. Section 13 provides: PRIOR TO LANDFILL DEVELOPMENT, AN IMPACT ASSESSMENT SHALL BE PREPARED BY THE RESOURCE RECOVERY OFFICE OF BROWARD COUNTY TO ADDRESS THE POTENTIAL HYDROLOGICAL IMPACTS OF THE DEVELOPMENT OF THE LANDFILL ON ANN KOLB PARK. DATA AND INFORMATION UTILIZED TO OBTAIN FDER PERMITS WILL BE USED TO CONDUCT THIS ASSESSMENT. IN THE EVENT POTENTIALLY SIGNIFICANT IMPACTS ARE IDENTIFIED, A MANAGEMENT PLAN SHALL BE DEVELOPED TO OFFER RECOMMENDATIONS AND MITIGATIVE ACTIONS TO INSURE THE INTEGRITY OF ANN KOLB PARK. (Emphasis supplied) The evidence is clear that an impact assessment is only required before development commences. Consequently, the proposed RRF does not violate the rezoning ordinances. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel, a daily newspaper, on July 4, 1985, and also in the Florida Administrative Weekly on June 28, 1985.
Findings Of Fact Petitioner River Trails is the developer of a condominium community in Palm Beach County known as River Walk. River Walk is contiguous to and immediately adjacent to 2600 feet of South Florida Water Management District (hereinafter "SFWMD") property bordering Canal C-18 in Palm Beach County. The right- of-way adjacent to C-18 as well as the bottom of C-18 is owned by SFWMD. C-18 is not in an area designated as Outstanding Florida Waters. As required by Section 403.813(2), Florida Statutes, River Trails sought and obtained on January 12, 1984, a permit from the SFWMD to construct a dock and boat ramp in Canal C-18. The permit conveyed no property rights to River Trails. On October 12, 1984, River Trails asked DER to confirm that River Trails' proposed boat ramp qualified for an exemption pursuant to Section 403.813(2)(c), Florida Statutes. By letter dated December 20, 1984, DER informed River Trails that the proposed boat ramp did qualify for the exemption and, therefore did not require any permit from DER. On October 18, 1984, River Trails asked DER to confirm that River Trails' proposed dock of 1,000 square feet or less qualified for an exemption from DER's permitting authority pursuant to Section 403.813(2)(b), Florida Statutes. However, on November 30, 1984, DER informed River Trails that its proposed dock did not qualify for the exemption because there was already an existing dock on SFWMD property on Canal C-18. As authority for its position, DER cited the following sentence in DER Rule 17-4.04(9)(c), Florida Administrative Code: "A private dock is a single pier at a parcel of property." On the 2600 feet of SFWMD-owned right-of-way contiguous to River Trails, there are presently no docks. On SFWMD-owned right-of-way east of River Trails, between River Trails and the southwest fork of the Loxahatchee River, there are two docks approximately 300 feet apart located in front of single-family residences. DER contends all contiguous property owned by an individual, group or entity, including a water management district, constitutes a "parcel of property" and accordingly does not recognize River Trails' claim to an exemption because of the existence of these docks. Prior to River Trails' request that DER confirm River Trails' right to an exemption, DER had not interpreted water management district-owned right-of-ways to be a "parcel of property" within the meaning of Rule 17- 4.04(9)(c). In the past, the SFWMD has permitted numerous docks of less than 1,000 square feet on SFWMD-owned right- of-ways. Copies of these permits were routinely forwarded to DER. While these docks were and are on right-of-ways which DER now defines as a "parcel" within the meaning of Rule 17-4.04(9)(c), DER has not required permits for these docks. The DER employees who interpret the rule in question as part of their duties and whose depositions were introduced at hearing do not agree on the configuration which constitutes a single pier, on the degree of ownership or control required over a parcel of property by an applicant for an exemption, or on the definition of a parcel of property. DER has failed to adequately explain its deviation from past agency practice in interpreting SFWMD right-of- way as a parcel of property. But for DER's new interpretation of the term "parcel of property" found in Rule 17-4.04(9)(c), Florida Administrative Code, River Trails' proposed dock meets the statutory and rule requirements for an exemption from obtaining a permit from DER.
The Issue The issues in this case are whether Amendments 05-02B, 05- 02C, 05-02G, and 05-02H to the Bay County Comprehensive Plan ("Plan") are “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes.2
Findings Of Fact Ordinance Limitations and FLUM Notations Much of Petitioners' evidence and argument concerning the FLUM amendments either overlook the ordinance limitations and FLUM notations, or presume that they are illegal and ineffective. But the greater weight of the evidence was that ordinance limitations and FLUM notations generally are not illegal, ineffective, or unprecedented. To the contrary, Rule 9J-5.003(6) defines a plan amendment to include "an action affecting a prior plan or plan amendment adoption ordinance"; and Rule 9J-5.005(1)(c)6. states that the adopted comprehensive plan includes "a copy of the local comprehensive plan adoption ordinance at such time as the plan is adopted." To amend the ordinance containing the cap or remove the notation on the FLUM, the amending ordinance would have to be processed as a new comprehensive plan amendment pursuant to Section 163.3184, Florida Statutes. Placing limitations in FLUM amendment adoption ordinances and FLUM notations is an option for planning for development that can be used in response to the recent change in the state’s growth management law requiring more stringent review of the impacts of comprehensive planning on public facilities. See §§ 1-5, Ch. 290, Laws of Florida (2005). Other goals of the Act and the Plan, such as protection of natural resources, also justify the limitation of development within a FLUM Amendment to a density supportable by development on the upland acreage of a site. As with the goals, objectives, and policies of the Plan, these development limitations can only be removed through the Plan amendment process. Need Although DCA frequently objects on the basis of need in the plan amendment review process, neither Chapter 163, Part II, Florida Statutes, nor Florida Administrative Code Chapter 9J-5, provides a clear formula for determining need. Instead, DCA uses a professional planning standard which examines population growth and growth trends within a community. Expert review and analysis of Bureau of Economic and Business Research (“BEBR”) studies and vacant land studies available as of December 20, 2005, revealed an accelerated growth trend occurring in the County--i.e., in recent years, the County’s actual population growth is running ahead of projected growth. In addition to projecting population growth and assessing capacity to accommodate growth, an allocation needs ratio (or multiplier) is necessary to ensure housing affordability and variety in the market; otherwise, the supply and demand relationship is too tight, which may cause a rapid escalation of housing prices. Because the farther in time a local government projects growth, the less accurate those projections tend to be, actual need is multiplied by an allocation needs ratio to produce an additional increment of residential land use to accommodate this potential for error. Small counties that experience above-normal growth rates may use allocation ratios as high as three or more in order to realistically allocate sufficient buildable land for future growth. The County’s allocation ratio of 2.2 before the WB DSAP and FLUM amendments was low from a long-term forecasting perspective. When the WB DSAP amendments are factored into the allocation ratio, such growth would raise the allocation ratio to 2.3, which is still relatively low. A land use plan should allow for sufficient inventory to accommodate demand and to provide some choice in order to react to economic factors. One such economic factor in the County is the demand for coastal residences. Natural Resources The County does not designate wetlands within individual parcels as a separate land use on its FLUM. There is no state law or rule which prohibits a residential land use designation for land containing wetlands. The Plan, as adopted, provides appropriate wetland protection policies and standards that are applicable to development throughout the County, including that proposed for the FLUM Amendments. The FLUM Amendments do not repeal, revise, or exempt development from the existing policies of the Plan. The Plan has provisions, including those in the future land use element, the conservation element, and the infrastructure element, which control development within wetlands, provide for floodplain management, restrict densities and intensities within areas with high aquifer recharge potential, and otherwise address impacts to natural resources. Development of the FLUM Amendments must comply with the entirety of the Plan, and the expert testimony was that the FLUM Amendments are consistent with all applicable Plan provisions. Petitioners did not provide any countervailing evidence on that issue, except the testimony of Dr. Bacchus. See Findings 57-58, supra. Public Facilities To address and control growth pressures the Future Land Use Element includes three classes of service areas to guide delivery of public services. These are the Urban Service Area, the Suburban Service Area, and the Rural Service area. Under the Plan, these designations determine where centralized water and sewer facilities will be provided. Under the Plan, lands located in the urban area receive the highest per-acre residential densities, lands located in the suburban area receive a lower per-acre residential densities, and lands located in the rural area receive the lowest per-acre residential densities. Throughout the hearing, Petitioner Brown appeared to argue that Chapter 163, Part II, Florida Statutes, and Florida Administrative Code Chapter 9J-5 require a showing of concurrency at the time of approval of a FLUM amendment. However, the law has long been interpreted to provide that concurrency is attained if the necessary facilities are in place at or after the development order stage, depending on the facility at issue. Consistent with law, the County’s Plan has strong concurrency policies, which provide that determinations regarding the availability of public facilities are required prior to the issuance of development orders or building permits and that applicants for such permits must provide detailed, concurrency-type analyses regarding traffic, water, sewer, and all other public facilities. With regard to school capacity, the County and the applicants coordinated with the County School District to provide a district-wide analysis of student enrollment and planned capacity which fulfills school concurrency requirements as currently interpreted by DCA. At least with respect to Clara Avenue and Register Farms, Petitioner Brown took the position that additional, refined data and analysis on school and grade- level scales were required. AMENDMENT 05-02C (COLLEGE STATION) Without specific density limitations, College Station would have a maximum development potential of 2,835 units under the residential land use designation. But approximately 289 acres of College Station contain wetlands (220 acres) or will be devoted to green space, roadways, or stormwater management facilities (69 acres). Even though they took the position that residential density throughout the County is calculated based on gross acreage, the County and St. Joe agreed that a realistic number of dwelling units locatable on the remaining 278 acres of College Station would be 1,390 instead of the 2,835 unit maximum. As indicated, this limitation was made part of the adopting ordinance. In addition, a further limitation to 800 units pending sufficient concurrency evaluations was noted on the FLUM. In every respect, the College Station FLUM Amendment is internally consistent with the Plan, the state comprehensive plan, and the West Florida Strategic Regional Policy Plan. Petitioner Brown put on no specific countervailing testimony that College Station was not consistent with specific provisions of those plans. Compatibility The College Station parcel is located in the eastern area of the County, southeast of U.S. Highway 231, a major four- lane divided arterial roadway, and east of Pipeline Road, a County roadway. There is residential development to the north, south, and west of College Station. There is a residential single-family development platted for 300 units to the north, and existing single-and multi-family development to the west. While there is a small amount of residential use east of College Station, a large portion of the properties to the east remain timberland. College Station is adjacent to the municipalities of Cedar Grove and Panama City. The eastern area of the County, and specifically the area generally located along the U.S. Highway 231 corridor, is transitioning from suburban to urban uses, which means the area is near urban uses, services, and facilities. College Station mapping depicts two out-parcels owned by others; one out-parcel is surrounded by College Station, and the other borders College Station on three sides and looks like a finger sticking into College Station Both out-parcels are classified as Agriculture Timberland, which allows one residential dwelling unit on each out-parcel. Petitioner Brown’s planning witness opined that keeping the Agriculture Timberland classification on the out- parcels made no sense due to their potential for noxious uses. But the existence of land not controlled by the applicant, regardless of its proximity to the land which is the subject of the application, goes to the issue of compatibility in a compliance challenge, and DCA had no concerns regarding the compatibility of the out-parcels with College Station. Petitioner Brown's evidence was not sufficient to prove that the College Station FLUM Amendment is incompatible with surrounding land uses and development or inconsistent with Plan policies relative to compatibility. Need One consequence of high demand for coastal residences is a considerable increase in costs of, and profits to be gained from sale of, such coastal residences. This has resulted in a migration of many of the County’s permanent residents from the coastal areas to the more affordable areas to the east, including along U.S. Highway 231. The east side of the County is a logical area for growth, as is evidenced by the growing size of the municipalities around the U.S. Highway 231 corridor and the increase in industrial and commercial uses in that area. The emergence of that area as an employment center is another factor supporting additional residential development there. Because there is not a lot of other vacant land available near centralized utilities in the eastern areas of the County, College Station is appropriate for the approved residential uses in this location. For these reasons, need was not an issue DCA raised with regard to the FLUM Amendment. Petitioner Brown's evidence was not sufficient to prove that there is not a demonstrated need for the College Station FLUM Amendment. Natural Resources The data and analysis provided to support the College Station FLUM Amendment covered a wide range of natural resources characteristics of the parcel. No agencies questioned the sufficiency of the natural resources data and analysis in the ORC process. The 220-acre assessment of wetlands on College Station was based on a review of several professionally-accepted sources, including NWI mapping. See Finding 55, supra. Based on Federal Emergency Management Area (“FEMA”) mapping, a small portion of College Station falls within a floodplain. There are no federal, state, or local regulations that prohibit development within floodplains. Development on College Station will be required to comply with FEMA and local floodplain regulations at the development order stage. Additionally, because a large portion of College Station falls within the Plan’s designated North Bay Ecosystem Management Area, development must comply with stringent stormwater treatment and attenuation requirements similar to those for an OFW. The 1390-unit density limitation approved for College Station is partially based on an acreage reservation for the construction of stormwater management facilities. St. Joe presented analysis in the form of a conceptual development plan showing that the approved levels of development could be constructed at College Station with little or no adverse impacts to wetlands, which is consistent with Plan objectives for protection and conservation of wetlands. The conceptual development plan provides for a minimum 30-foot buffer from all wetlands, consistent with the requirements of the Plan, and reacted appropriately to the location of floodplains and other constraints within College Station. The College Station parcel is suitable for the approved level and type of development. Public Facilities There is adequate water and sewer capacity in the County’s system to serve the maximum level of development approved for College Station, and the necessary County infrastructure is already in place and near College Station. With regard to traffic facilities, DCA determined that the potential existed for a level of service (LOS) failure on a segment of U.S. Highway 231 after cumulative analysis of the traffic impacts from College Station and Register Farms. To address this potential LOS failure, DCA recommended phasing of the two developments so that they would not cause that roadway segment to become deficient, with a corresponding provision that development could continue when road capacity was enhanced. Consistent with that recommendation, development on the College Station parcel is limited to 800 residential units through the placement of a notation on the FLUM. See Finding 78, supra. Regardless of this notation on the FLUM, a concurrency evaluation would be required during the development order process. Both DCA and the Florida Department of Transportation (FDOT) agreed that traffic concerns were addressed adequately. The traffic analysis for College Station was based on an average daily rather than a peak-hour trip analysis. An average daily trip analysis is typical of planning level studies and is accepted by the FDOT for FLUM amendments. In any event, for the only roadway showing a potential deficiency--a segment of U.S. Highway 231--the average daily results and peak-hour results would be similar if not the same, due to the roadway’s typical commuter route traffic characteristics. The evidence presented by Petitioner Brown did not prove that the College Station FLUM Amendment is inconsistent with the public facility requirements of the Act. Support by Data and Analysis Petitioner Brown questioned whether there were data and analysis "concerning the affect [sic] of the proposed plan amendment on the flooplain [sic] and drainage pattern." PPRO, ¶II.A.7. As indicated, there were data and analysis, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. Petitioner Brown questioned the use of the 1,390 residential unit limitation for purposes of the College Station traffic analysis. As indicated, it was appropriate to use the 1,390 residential units for purposes of the traffic analysis. Petitioner Brown questioned whether there were data and analysis supporting the College Station FLUM amendment with out-parcels. As indicated, there were data and analysis to support the configuration of the FLUM amendment, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. Petitioner Brown questioned the adequacy of data and analysis "concerning listed species that are located adjacent to the property and may be present on the property." PPRO, ¶II.A.8. Specifically, Panama City Crayfish and Apalachicola Dragonhead were found in the cleared power line easement along a boundary of the College Station, but the property itself was not surveyed for the presence of those species. Petitioner Brown argues: "Not providing data and analysis leads to the creation of unrealistic development expectations for the property owner and puts the planning process on its head." PPRO, ¶II.A.10. But the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate, or that St. Joe has any "unrealistic development expectations" from having found listed species on a cleared power easement on its property but not yet having surveyed the remainder of its property. Petitioner Brown argued: "Average daily trips is not the best available data to conduct an analysis of the proposed FLUM amendment, instead Peak Hour Trips should be used " PPRO, ¶II.A.21. As indicated, the use of average daily trips was adequate data and analysis for purposes of the traffic analysis. In addition, original data collection is not required. See Fla. Admin. Code R. 9J-5.005(2)(b). Petitioner Brown argued: "There was no analysis as to whether [the 30-inch potable water line and 10-inch force sewer main adjacent to the property] were of sufficient size . . . ." PPRO, ¶II.A.22. As indicated, there were data and analysis as to the availability of public facilities to serve development at College Station, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. To the contrary, there was specific, undisputed expert testimony that the potable water line and force sewer main are adequate to serve the College Station development. Petitioner Brown argued: "No data and analysis was submitted to show that the County had reviewed the application for adverse impacts to the natural resources described in the conservation element or coastal element of the Bay County Comprehensive Plan." PPRO, ¶II.A.27. As indicated, there were data and analysis as to natural resource impacts, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. (As indicated, the Coastal Management Element does not apply. Also, much of the argument was based on Dr. Bacchus's generalized opinions.) See Findings 57-58, supra.) Citing Dr. Bacchus's testimony, Petitioner Brown argued: "Clustering the additional density allowed by the Plan Amendment would cause impacts to adjacent wetlands In addition, clustering of development density assigned to wetlands on the adjacent uplands will cause adverse impacts " PPRO, ¶¶II.A.29-30. However, as indicated in Finding 100, supra, by virtue of the limitation in the adopting ordinance, the FLUM amendment assigns no residential density to 220 acres of wetlands on the site. While Dr. Bacchus raised generalized questions about allowing high-density residential development on uplands, it was not proven that the specific density assigned by the College Station FLUM amendment was inappropriate. As indicated, it was not proven that the College Station FLUM Amendment was not supported by data and analysis, as required by Sections 163.3177 and 163.3178, Florida Statutes. Capital Improvements Schedule Petitioner Brown argues: "It is beyond fair debate that Bay County's Comprehensive Plan, the DSAP amendments and the proposed FLUM Amendments are not in compliance, because Bay County does not have a capital improvement schedule for provision for public facilities set forth, although required by Section 163.3177(3)(a)(5), Florida Statutes." PPRO, ¶II.A.25. But her evidence failed to prove that changes to the capital improvements schedule were necessitated by the College Station FLUM Amendment. AMENDMENT 05-02G (CLARA AVENUE) The Clara Avenue parcel is located in the southern area of the County just north of U.S. Highway 98, a major four- lane divided arterial road, and south of West Bay. It is adjacent to the City of Panama City Beach to the west. Also to the west is residential development in a golf course community. To the south, the FLUM designates the property along U.S. Highway 98 as General Commercial. Petitioner Brown alleged that the Clara Avenue FLUM Amendment allows a change in land use to a category allowing higher density and intensity of use for property surrounded by lower density and intensity land uses, resulting in an internal inconsistency. See Amended Petition, ¶ 67. However, this argument was not maintained in the PPRO. Because the property to the south is designated General Commercial and the property to the west has residential uses, there is no internal inconsistency. The County has a Wide Open Spaces policy in the Plan that designates urban, suburban, and rural service areas. The Urban Service Area is within or near city limits and is appropriate for a full range of urban services including paved roads, central water, and sewer. The Clara Avenue parcel is located in the Urban Service Area. The designation of Agriculture in the FLUM is not one that the Plan normally includes within the Urban Service Area. Thus, the adopted land use is more consistent with the County’s Wide Open Spaces Policy. The area of the County between Philips Inlet and the Hathaway Bridge along U.S. Highway 98 is transitioning from agricultural to urban. This is demonstrated by the County’s inclusion of much of that area in the Urban Service Area on the FLUM. The Clara Avenue FLUM Amendment encourages the separation of urban and rural land uses by channeling urban uses into the Urban Service Area adjacent to Panama City Beach, an incorporated municipality. No Commercial Allowed in General Commercial In addition to questioning the legality and enforceability of the Clara Avenue FLUM amendment's adoption ordinance and FLUM notation limitations to 999 residential units (which already has been addressed, see Finding 87, supra), Petitioner Brown’s planning witness also objected that the limitations to 999 residential units were incompatible with the designation of the Clara Avenue parcel as General Commercial, and internally inconsistent. While clearly compatible (since residential is allowed in General Commercial), internal consistency is a closer question since the Purpose of General Commercial under the Plan is to: "Provide areas for the continuation , expansion, and creation of business enterprise." Plan Table 3A. At the same time, Table 3A places no limits on the amount of residential allowed in General Commercial, as the countervailing expert testimony and arguments point out. While the limitations are unorthodox and counter-intuitive, and even more likely to cause confusion than the limitation on the other FLUM amendments, it was not proven beyond fair debate that the Clara Avenue adoption ordinance and FLUM notation limitations are inconsistent with Plan Table 3A. Need Analysis Citing the testimony of Dr. Fishkind, Petitioner Brown argued: "No data and analysis concerning the need for the proposed plan FLUM amendment was provided. The demand for residential units is 45,000 units over the next 20 years and the 110,000 units that could be developed under the existing comprehensive plan and plan amendments far exceeds the estimated population growth and demand. No data was submitted showing a bona fide need for this additional residential development density." PPRO, ¶II.B.5. However, Dr. Fishkind actually calculated that 101,000 units could be developed under the existing comprehensive plan and plan amendments and, as indicated, calculated the allocation ratio for the County to be 2.3 or 2.4 with the plan amendments, which he characterized as being reasonable but still "on the low side for this type of community." (T. 1333) See Finding 93, supra. DCA did not even consider need to be an issue regarding the Clara Avenue FLUM Amendment. Expert testimony established that the re-designation of land to residential use was justified in the County based on the limited amount of vacant land near centralized utilities within unincorporated County and the County’s projected need for residential units. While this testimony referred specifically to College Station, it also was applicable to Clara Avenue. In addition, the General Commercial designation (with or without commercial uses) is as or more appropriate than the current agricultural designation. Petitioner Brown did not prove that there was no adequate demonstration of need for the Clara Avenue FLUM amendment. Natural Resources Petitioner Brown argues that the Clara Avenue FLUM amendment was not based on appropriate data and analysis regarding wetlands (namely, County GIS wetlands maps based on NWI data and aerial photographs) but rather on inaccurate depictions on a conceptual site plan presented by the applicant. The evidence proved that the depictions on the conceptual site plan differed somewhat from the other data sources but did not prove that the conceptual site plan depictions were inaccurate. Regardless of the depictions on the conceptual site plan, the other wetlands information is adequate data for purposes of a FLUM amendment. (By rule, the NWI information is acceptable "for preliminary identification of wetland locations " See Fla. Admin. Code R. 9J-5.005(2)(c).) The wetlands and floodplain information and analysis required at the comprehensive plan amendment stage of development of a parcel is less extensive than would be required at a development order or permitting stage. It was not proven that the information showing wetlands on the property prohibited the General Commercial designation, with limitation to 999 residential units. To the contrary, the conceptual site plan incorporated the best available data based on the surveys and environmental consultants and demonstrated that the Clara Avenue parcel could be developed in a manner consistent with the Plan within the wetland constraints presented by the Clara Avenue parcel while protecting, preserving, and maintaining natural wetland systems. As with College Station, Petitioner Brown cited Dr. Bacchus's testimony and argued: "Clustering the additional density allowed by the Plan Amendment from Agricultural to General Commercial (either 1202 or 999 with limitation of section 2, Ord. 05-81) would cause impacts to adjacent wetlands. . . . In addition, clustering of development density assigned to wetlands on the adjacent uplands will cause adverse impacts . . . ." PPRO, ¶II.B.32. But the County's Plan has adequate provisions for the protection of wetlands. While Dr. Bacchus raised generalized questions about the impacts of allowing higher-density residential development on uplands, it was not proven that the specific density assigned by the Clara Avenue FLUM amendment (999 residential units on 80 acres) was inappropriate. Likewise, her generalized opinions about the impacts of any additional development on supplies of potable water, disposal of treated wastewater, offsite sewage sludge disposal, water quality, and the natural system in general did not prove that the Clara Avenue FLUM amendment was inappropriate. Public Facilities As with College Station, Petitioner Brown argued that the data and analysis for the Clara Avenue FLUM Amendment were inadequate because it failed to take into account the maximum theoretical densities for the parcel without the “999 residential units and no commercial uses” limitation. However, as indicated, DCA worked with Clara Avenue to institute the “999 residential and no commercial uses” limitation on the development of the Clara Avenue parcel that is noted on the FLUM to address a potential level of service failure for transportation and other facilities. The limitation provided in the ordinance and on the FLUM does not allow a higher density and intensity of use and was designed to prevent any unsustainable growth due to the FLUM Amendment. In light of the limitation to 999 residential units, an adequate analysis of the public facilities was conducted, which appropriately concluded that adequate public facilities will exist at the time of development of the Clara Avenue FLUM Amendment. The water and sewer service to the Clara Avenue parcel will be provided by the City of Panama City Beach. Al Shortt, the City Engineer and Utilities Director for the City of Panama City Beach, testified that there is adequate water and sewer capacity in the City of Panama City Beach’s system to serve the maximum level of development approved for Clara Avenue. The Clara Avenue project would not adversely impact water or wastewater facilities in the City of Panama City Beach. Any additional infrastructure necessary to provide water and wastewater services will be provided by Clara Avenue consistent with the Panama City Beach requirements. In addition to Shortt’s analysis, Ray Greer also evaluated Panama City Beach’s water capacity, wastewater capacity, and expected public works expansions for water and wastewater and any effects the Clara Avenue FLUM Amendment would have on those public facilities. He determined that the Clara Avenue FLUM Amendment would not have any adverse impacts on water or wastewater. Petitioner Brown presented no evidence to the contrary. The solid waste facility that would serve the Clara Avenue FLUM Amendment is the Steelfield landfill in Bay County. Greer testified that the Steelfield landfill will not be adversely affected by the impacts due to the Clara Avenue FLUM Amendment. Petitioner Brown presented no evidence to the contrary. Petitioner Brown's planning witness observed that the existence of current water and sewer capacity is not a commitment or guarantee that capacity will be available in the future. But commitments and guarantees are not required at the FLUM amendments stage of the planning process. Clara Avenue conducted a comprehensive planning traffic impact analysis based on the objections raised by DCA requesting an analysis based on generally accepted methodology. This analysis included a P.M. peak-hour analysis for various road links around the Clara Avenue site. The P.M. peak-hour analysis typically is the worst case scenario. The study looked at projected volumes in 2010 and found the Clara Avenue FLUM Amendment, with the adopted limitation to 999 residential units, would not significantly and adversely impact any roadway segments within the meaning of Florida Administrative Code Rule 9J-5.019. The current state of the Clara Avenue roadway north of U.S. Highway 98 is a one-lane dirt path. Petitioner Brown raised issues concerning whether the current state of Clara Avenue north of U.S. Highway 98 is consistent with the requirements of Section 2.1.3.4 on page 2-4 of Joint Exhibit 23 that General Commercial should “generally [front] on a paved collector or arterial roadway.” Clara Avenue’s expert planning witness testified that this does not create an issue at the comprehensive plan amendment stage because Clara Avenue will be paved and provide access to U.S. Highway 98 and function as a significant roadway north of U.S. Highway 98 similar to its function south of U.S. Highway 98. Petitioner Brown did not mention the issue in the PPRO. With respect to the adequacy of public facilities for the Clara Avenue FLUM amendment, Petitioner Brown repeated the same argument that she made with respect to College Station's alleged lack of a CIS: "It is beyond fair debate that Bay County's Comprehensive Plan, the DSAP amendments and the proposed FLUM Amendments are not in compliance, because Bay County does not have a capital improvement schedule for provision for public facilities set forth, although required by Section 163.3177(3)(a)(5), Florida Statutes." PPRO, ¶II.B.26. But, as with College Station, her evidence failed to prove that changes to the capital improvements schedule were necessitated by the Clara Avenue FLUM Amendment. Petitioner Brown did not specifically plead any issues regarding schools, except with regard to the WB DSAP Amendment. However, adequacy of public facilities was raised as an issue as to Clara Avenue, evidence was presented during the final hearing, and the issue was included in the PPRO, ¶¶II.B.27-30. Clara Avenue developed an accepted methodology and undertook an analysis, taking into consideration Florida Senate Bill 360, which was enacted by Chapter 290, Laws of Florida (2005), to determine the projected increase of school population attributable to the Clara Avenue FLUM Amendment, and it was determined that there would not be an adverse impact to the schools from the Clara Avenue FLUM Amendment in the short term or long term. Bay County's School Facilities Planner agreed. Although she disputed the school analysis, Petitioner Brown provided no evidence to contradict the analysis conducted by Greer and the Bay County School District. Petitioner Brown's dispute with the school analysis seems to be, essentially, twofold. First, she criticizes reliance on the adoption ordinance and FLUM notation limitation to 999 residential units, which already has been addressed. Second, she argues, essentially: "No data and analysis sorted by 'elementary, middle and high schools' was submitted by the applicant." Although such information was requested in DCA's ORC, it was not demonstrated that such information is required at this point in the planning process at this time. (Senate Bill 360 does not require the establishment of school LOS standards until 2008.) Petitioner Brown failed to prove that the Clara Avenue FLUM Amendment is inconsistent with the public facility requirements of the Act or any applicable comprehensive plan. AMENDMENT 05-02H (REGISTER FARMS) With respect to need, Petitioner Brown offered no testimony that there was no need for the development as authorized by the Register Farms FLUM Amendment. Most of the arguments Petitioner Brown directs to the Register Farms FLUM amendment are arguments also made as to College Station and Clara Avenue. See PPRO ¶¶II.C.2-18, 22-29. (In some cases, Petitioner Brown appears to repeat arguments with respect to the other FLUM amendments that do not apply to Register Farms. See PPRO ¶II.C.24-27.) As with the other FLUM amendments, issues as to need, availability of public facilities, and adequacy of the CIS are premised on the alleged illegality and unenforceability of the adoption ordinance and FLUM notation limitations. Issues regarding natural resources also are premised on Dr. Bacchus' generalized opinions about the impacts of development on the natural environment. In those regards, those issues already have been addressed and need not be repeated. Compatibility Petitioner Brown argues with respect to the Register Farms FLUM amendment: "It is incompatible to put large residential areas next to existing agricultural operations because of machinery, insecticides, burning, farm animals, and there should be a separation between rural and urban uses." PPRO, ¶II.C.19. But there was ample evidence to justify the FLUM amendment. Ray Greer testified that the Register Farms site was located within the Suburban Service Area and was in an area that was experiencing growth. He explained that, as with College Station, some of this growth was due to the fact that people were moving inland to find more affordable housing opportunities. The County planning staff summary report prepared for the Register Farms FLUM Amendment concluded that because of its location and nearby/surrounding land uses, the subject properties are appropriate for land use activities other than agriculture. It found that the FLUM Amendment fills in a gap between existing residential and commercial areas which have developed along U.S. Highway 231. If developed as proposed, the requested FLUM Amendment would create opportunities for shopping and other commercial activities for which area residents must currently travel considerable distances on U.S. Highway 231. While this will create additional local traffic (which will not drop U.S. Highway 231 below its adopted LOS), it will reduce the amount of traffic flowing from the County’s less urbanized area into the urban area for basic shopping needs. Petitioner Brown did not prove that the Register Farms FLUM Amendment is not compatible with surrounding land uses. Natural Resources As regards wetland issues, Mr. Greer testified that his analysis provided with the FLUM Amendment identified potential wetlands on site, and he concluded that the site was suitable for development. Petitioner Brown’s wetlands witness, Dr. Bacchus, testified that wetlands on the Register Farms site were not a major factor in her analysis. She was more concerned with the potential impacts to offsite impacts to wetlands from water and sewer and waste disposal services needed to support development of the site. With respect to onsite wetlands, Dr.Bacchus criticized the resolution of the aerial photography included in the transmittal and adoption packages and testified that there are aerials with better resolution that better show excavation onsite that, as Petitioner Brown argues, "would increase the potential for adverse impacts from an environmental standpoint." PPRO, ¶II.C.21. But it was not proven that the wetlands data and analysis did not support the Register Farms FLUM amendment. As to the offsite land use activities cited by Dr. Bacchus, environmental impacts are addressed during required permitting by FDEP. See Finding 58, supra. Dr. Bacchus provided no quantitative analysis, nor did she provide any specific evidence of any impacts to offsite natural resources by the Register Farms FLUM Amendment. She was also apparently operating under the incorrect assumption that the Register Farms FLUM Amendment somehow was affected by the “gross” to “net” density issue associated only with the DSAP amendment. Nothing in Chapter 163, Part II, Florida Statutes, or Rule Chapter 9J-5 requires data and analysis of the impacts of development resulting from a FLUM amendment on offsite wetlands. On the contrary, Rule 9J-5.013(3) discusses wetlands in the context of the land on which the FLUM is proposed, stating: “Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands.” In this case, the County has policies in its Plan providing that development should be directed away from wetlands. Mr. Greer testified that the amount of development authorized by the FLUM amendment took into account the wetlands on the site. Petitioner Brown offered no testimony to support her allegations that the Register Farms FLUM Amendment caused flooding or impacted coastal resources pursuant to Section 163.3178, Florida Statutes. At any rate, like College Station, the Register Farms FLUM Amendment is not located within the designated coastal planning area. Petitioner Brown did not prove that the Register Farms FLUM Amendment is inconsistent with the requirements of the Act and Rules regarding natural resources. Public Facilities Ray Greer, who was qualified as an expert witness in the field of comprehensive planning, prepared data and analysis to respond to DCA’s concerns raised in its ORC report regarding the Register Farms FLUM Amendment, and his testimony and report demonstrated that there were adequate data and analysis of the impacts of the Register Farms FLUM Amendment on public infrastructure and that the development authorized by the FLUM Amendment could be served with adequate public facilities, including schools. Petitioner Brown's only arguments to the contrary (which, unlike Clara Avenue, do not include reference to schools) already have been addressed. Petitioner Brown did not prove that the Register Farms FLUM Amendment is inconsistent with the requirements of Chapter 163, Part II, Florida Statutes, and Rule Chapter 9J-5 regarding impacts to public facilities and infrastructure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order determining that Amendments 05-02B, 05-02C, 05-02G, and 05-02H are “in compliance,” as defined Section 163.3184(1)(b), Florida Statutes, and reserve jurisdiction on all pending motions for sanctions. DONE AND ENTERED this 5th day of December, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th of December, 2006.
The Issue The issue is whether Florida Administrative Code Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority for the reasons alleged by Petitioners.
Findings Of Fact Austin is the owner of real property located at 1580 Indian Pass Road, Port St. Joe, Florida. Heslin is the owner of real property located at 1530 Indian Pass Road, Port St. Joe, Florida. Lighthouse is the applicant for a coastal construction control line (CCCL) permit for structures and activities proposed to occur on property located adjacent to Austin’s property. Heslin’s property is located within 500 feet of the proposed project site. The property for which the CCCL permit is sought is located landward of the mean high water line (MHWL). On January 31, 2006, the Department gave notice of issuance of a CCCL permit to Lighthouse. The proposed permit authorizes activities 228 feet seaward of the CCCL, specifically, the construction of a subdivision roadway/cul-de- sac including asphalt and limerock foundation, excavation of soil, filling of soil, ornamental street lights, stormwater management swales, below grade utilities, and dune enhancement plantings. Lighthouse obtained a subdivision plat for the site from Gulf County, Florida, on June 28, 2005, which includes 12 platted lots seaward of the CCCL, each approximately one quarter acre in size. When issuing the CCCL permit, the Department did not consider the platted subdivision that will be serviced by the permitted roadway project. Austin filed a petition challenging the issuance of the CCCL permit to Lighthouse. The challenge is styled Gloria Austin v. Lighthouse Walk, LLC and Department of Environmental Protection, DOAH Case No. 06-1186 (hereafter “the Permit Challenge”), and is pending before Judge Alexander. Heslin sought and was granted leave to intervene in the Permit Challenge. Paragraphs 6, 10, and 18 of the Petition for Formal Administrative Proceeding (Petition) in the Permit Challenge state as follows: 6. The proposed subdivision that is intended to be built by Lighthouse, will result in incompatible high density residential development seaward of the costal control line and seaward of the Petitioners’ homes. The incompatible and inappropriate nature of this subdivision will greatly increase the danger of Petitioners’ homes being damages by storm driven debris in the event of a major storm event such as a hurricane occurring in this area. * * * The area in question on Cape San Blas is presently developed in very low density single family home sites. The proposed development would create high density development seaward of the coastal construction control line for which construction is totally unnecessary and could easily be greatly minimized. The parcel in question could accommodate a residential subdivision without encroaching seaward of the present coastal construction and control line. In light of the above, it is clear the project violates Rule 62B- 33.005(3), Florida Administrative Code. * * * 18. The proposed permit would create a high density subdivision which would create a multitude of small single family lots on this site. By granting the permit for this site development, the Department is condoning the intended construction of a multitude of single family residences which are totally inappropriate for the beach dune system in this area. The combined effect of the construction of single family residences on the proposed plat seaward of the coastal construction control line will maximize impacts to the beach dune system, not minimize the impact as required by the Department’s rules in Chapter 62B-33, Florida Administrative Code. Lighthouse moved to dismiss the Petition in the Permit Challenge, to strike certain allegations, and for an Order in limine in that case. The Department filed a memorandum of law in support of Lighthouse’s motion, stating, in part: Contrary to Petitioner’s argument in paragraph 2(b), the Department’s rule contains a standard for determination of “cumulative effects.” Rule 62B- 33.005(3)(a), F.A.C., provides that “[I]n assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell.” The Department’s rules also contain a regulatory definition of “impacts” (not “cumulative impacts” as argued by the Petitioner). Therefore, consideration of future applications not yet pending with the Department is outside the scope of the Department’s permitting jurisdiction under the rule. Contrary to the arguments made by Petitioner in paragraph 2(c) and (d) construction of a “residential subdivision” is not a foregone conclusion. First, in Rule 62B-33.005(3)(a), F.A.C., it states that “[e]ach application shall be evaluated on its own merits in making a permit decision; therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Second, use by an applicant of the single family home general permit authorized by Section 161.053(19), F.S., and existing in Rule 62B-34.070, F.A.C., is not governed by the principle that a general permit is authorized without additional agency action. The concept of a general permit adopted by rule exists in many different permitting programs of the Department. The different permitting programs are created and governed by their organic statutes, and only those statutes (and rules promulgated under them) should be looked to for the legal principles that apply in the permitting program. (See paragraph 4. above). The case law cited by Petitioner in paragraph 2(c) of her response refers to general permits established under Chapter 403, F.S., specifically authorized by Section 408.814, F.S. Section 403.814(1) provides for use of a general permit 30 days after giving notice to the department “without any agency action by the department.” See § 403.814(1), Fla. Stat. (2005). No similar provision appears in Section 161.053(19), F.S. In addition, Section 403.814, F.S. provides for administrative review of the use of a general permit where the Department publishes or requires the applicant to publish notice of its intent to use a general permit. See § 403.814(3), Fla. Stat. (2005); Hamilton County Bd. of County Comm’rs v. State, Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991) and City of Jacksonville v. Department of Environmental Protection, 24 F.A.L.R. 938 (Fla. DEP 2001). By Order dated May 23, 2006, Judge Alexander struck paragraphs 6, 10, and 18 of the Petition in the Permit Challenge, holding, in part: Second, the Motion to Strike is granted in part, and paragraphs 6, 10, and 18 are stricken. The Motion to Strike paragraphs 9 and 19 is denied since paragraph 9 simply tracks the language in Florida Administrative Code Rule 62B-33.005(3)(a), and neither paragraph makes specific reference to impacts from the proposed construction of a residential subdivision. Although paragraphs 5 and 13 refer to alleged impacts to “wildlife habitat,” “drainage,” and “wind and water borne missiles during a storm,” which might arguably include matters unrelated to this action, the granting of the Motion in Limine below precludes Petitioner from introducing evidence regarding impacts to habitat other than sea turtles, the stormwater exemption, and wind and water borne missiles caused by the proposed construction of a residential subdivision. Finally, the Motion in Limine is granted, and Petitioner (and Intervenor) shall be precluded from introducing evidence in support of allegations relating to cumulative impacts caused by the proposed construction of a residential subdivision, debris and wind and water borne missiles from the proposed construction of a residential subdivision, the exemption of swales from stormwater discharge permit requirements, and any habitat impacts unrelated to sea turtles. See § 161.053, Fla. Stat. (2005); Fla. Admin. Code R. 62B- 33.005, 62B-33.007, and 62-25.030(1)(c). Petitioners have alleged in this case that Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority. Lighthouse has disputed that allegation in its Motion for Summary Final Order, which is fully supported by the Department. Section 161.053(5)(a), Florida Statutes, was first adopted by the Legislature in 1983. The statute was amended without any substantive changes to its text in 1987. Section 161.053(5)(a)3., Florida Statutes (2005),2 currently states in pertinent part: Except in those areas where local zoning and building codes have been established pursuant to subsection (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: The department may authorize an excavation or erection of a structure at any coastal location as described in subsection (1) upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including: * * * 3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system, which, in the opinion of the department, clearly justify such a permit. Rule 62B-33.005(3)(a) was amended in 1996 as follows: (3) After reviewing all information required pursuant to this Chapter, the Department shall: (a) Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other activities proposed within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. * * * (7) An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site, however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B-33.005(3)(d) and 16B- 33.006(2), Florida Administrative Code. Rule 62B-33.005(3)(a) was amended in 2000, as follows: After reviewing all information required pursuant to this Chapter, the Department shall: * * * Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Rule 62B-33.005(3)(a) currently appears as set forth in the preceding paragraph, but without the underlining. One of the provisions in Rule 62B-33.005(3)(a) that is being challenged in these cases states that the Department shall: [d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. This provision was first added to Rule 62B-33.005 in 1996. It was amended on August 27, 2000. The other provision in Rule 62B-33.005(3)(a) that is being challenged in these cases is the requirement that: [e]ach application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. This provision was first added to Rule 62B-33.005 in 1996. Rule 62B-33.005 is intended by the Department to implement Section 161.053(5)(a)3., Florida Statutes. Rule 62B-33.005(3)(a) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.053(5)(a)3., Florida Statutes. Petitioners disagree with the Department’s construction of the statute. Rule 62B-41.002 was first developed on August 23, 1992, as part of the newly enacted Rule Chapter 16B-41, which was later designated as Rule Chapter 62B-41. Rule 62B-41.002(28), first developed in 1992, is the precursor to Rules 62B-41.002(19)(a) and (b), which were added on October 23, 2001. Rule 62B-41.002 is intended by the Department to implement Section 161.041, Florida Statutes. Rule 62B-41.002(19)(b) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.041(2)(c), Florida Statutes. Petitioners disagree with the Department’s construction of the Statute. The current language of Section 161.041(2), Florida Statutes, was adopted by the Legislature in 1987, as follows: The department may authorize an excavation or erection of a structure at any coastal location upon receipt of an application from a property or riparian owner and upon consideration of facts and circumstances, including: Adequate engineering data concerning inlet and shoreline stability and storm tides related to shoreline topography; Design features of the proposed structures or activities; and Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system or coastal inlet, which, in the opinion of the department, clearly justify such a permit. Rule 62B-41.002(19) was amended to its current form in 2001, as follows: Renumbered as (19) * * * “Adverse Impacts” are those impacts to the active portion of the coastal system resulting from coastal construction. Such impacts are caused by coastal construction which has a reasonable potential of causing a measurable interference with the natural functioning of the coastal system. The active portion of the coastal system extends offshore to the seaward limit of sediment transport and includes ebb tidal shoals and offshore bars. "Cumulative Impacts" are impacts resulting from the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell individual coastal construction which, if permitted as a general practice on other coastal properties in the same general area, or if added to the adverse impacts from existing coastal construction are expected to result in an adverse impact. The scope of the "cumulative impact" review under the Environmental Resource Permit (ERP) program is described in the “Basis of Review” used by the South Florida Water Management District, St. Johns River Water Management District, and Southwest Florida Water Management. Under the “Basis of Review,” cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities, would result in a violation of state water quality standards or significant adverse impacts to functions of wetlands or other surface waters. The cumulative impact evaluation is conducted using an assumption that reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications. In reviewing impacts of a current ERP project application, the agency will review impacts from pending projects and extrapolate from those impacts to see what impacts future projects could contribute, using objective criteria, such as comprehensive plans, plats on file with local governments, or applicable land use restrictions and regulations. Tony McNeal, the administrator of the Department’s CCCL permitting program, acknowledged in his deposition testimony that the last sentence of Rule 62B-33.005(3)(a) “is a way of saying that the Department is not going to be bound by its prior actions in similar cases.” However, he also explained that the sentence does not allow the Department to act inconsistently because the Department “consistently applies the same rules” to each project that comes before it and “[t]he only thing that changes are the facts surrounding the project.”
The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2019.
The Issue The issues to be determined in this appeal are whether the decision of the Community Development Board (Board) to approve Flexible Development Application FLD2017-07012 filed by Gulfview Lodging, LLP (Gulfview), cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departs from the essential requirements of law.
Findings Of Fact The 0.59-acre project site is located at the northeast corner of South Gulfview Boulevard and Fifth Street and wraps around the McDonald’s parking lot and Frenchy’s Beach Café (Frenchy’s) to the west. The project site includes two parcels owned by Gulfview, and 2,195.09 square feet of the South Gulfview Boulevard right-of-way, which will need to be vacated by the City. Gulfview’s proposal is to demolish all structures currently on the project site and build a seven-floor hotel with 150 units per acre, which would be 88 rooms if the City vacates the 2,195.09 feet of right-of-way. Gulfview’s application for development approval was filed with the City on July 28, 2017, including design plans. The subject property is zoned Tourist (T) District with an underlying Future Land Use Plan (FLUP) category of Resort Facilities High (RFH). The subject site is located in the Beach Walk district of Beach by Design.2/ The maximum permitted density for the site pursuant to Beach by Design is 150 units per acre. The application contemplates a subsequent vacation process for the 2,195.09 square feet of City right-of-way. On July 20, 2017, the City Council approved the allocation of up to 59 units from the Hotel Density Reserve under Beach by Design (Case No. HDA2017-04001) and adopted a resolution to the same effect (Res. No. 17-19). Preston’s attorney admitted that he attended the July 20, 2017, City Council hearing that resulted in the July 28, 2017, Hotel Density Reserve Development Agreement (Development Agreement) between Gulfview and the City. Preston’s attorney attended the July 20 City Council hearing on behalf of Frenchy’s, but conceded to the Board and at oral argument that Frenchy’s is located on the land owned by Preston, as trustee, and Preston is the sole shareholder of Frenchy’s. The Development Agreement was recorded in Book 19727, Page 2465-2503 of the Public Records of Pinellas County, Florida, on August 2, 2017. The Development Agreement includes Exhibit “B”-- the same set of design plans that were filed with Gulfview’s July 28, 2017, application for development approval. Section 6.2.4 of the Development Agreement specifically states: The overall number of proposed units density provided for by this Agreement (88 units) is contingent upon the proposed vacation of the 2,195.09 square feet of South Gulfview Boulevard right-of-way within the Beach Walk district. The City shall process a right-of- way vacation ordinance to vacate the 2,195.09 square feet of South Gulfview Blvd. right of way within the Beach Walk district conditioned upon submission of a complete set of building plans for construction of the improvements shown on Exhibit “B”. Regardless of whether or not the vacation is granted the maximum permitted density of the property may not exceed 150 units per acre. Gulfview’s application requires a Level Two approval. Under Section 4-206 of the Community Development Code, a Level Two approval requires mailing of a notice of application to owners of properties “within a 200-foot radius of the perimeter boundaries of the subject property.” The notice mailed by the City identifies both the north parcel and the south parcel by address and parcel number. The notice also describes the quasi-judicial public hearing process before the Board and ends with an invitation “to discuss any questions or concerns about the project and/or to better understand the proposal and review the site plan” with the assigned planner. The City Clerk mailed notice of Gulfview’s application to owners of parcels located within 200 feet of the two parcels identified in the notice, including Preston. Preston does not dispute receiving the notice. Section 4-206 of the Community Development Code also requires the posting of a sign on the “parcel proposed for development.” Preston does not dispute that the sign was posted. Preston objected that the mailed and posted notices did not reference the proposal to vacate 2,195.09 square feet of right-of-way. He argued that if he had known more than “a few days ago” when he received the Staff Report ahead of the October 17, 2017, Board meeting that the right-of-way was proposed to be vacated, he would have had expert witnesses at the hearing to give “an equal presentation” in response to Gulfview’s presentation. Preston requested a continuance citing lack of proper notice and insufficient time to prepare for the public hearing. Preston did not introduce any testimony or other evidence regarding the application. Preston’s primary objection to the project was vacation of the right-of-way and he wanted the opportunity to present witnesses regarding that issue. Vacating the right-of-way is a separate process and the hearing before the Board is not the proceeding in which the right-of-way vacation is decided. However, the substantial competent record evidence shows that Preston had actual notice as early as July 20, 2017, that the proposed project contemplated vacating 2,195.09 square feet of right-of-way. Preston’s other objection was that Gulfview’s design plans did not meet the requirements of Beach by Design’s Beach Walk District overlay. Preston argued to the Board that the hotel’s proposed design did not meet the redevelopment goals for addition of facilities and amenities generally described as areas for outdoor dining, outside cafes, and other seaside amenities.3/ However, although Preston had actual notice of the hotel design plans as early as July 20, 2017, he did not introduce any expert testimony or other evidence to support those objections. The Staff Report states that Beach by Design proposed to create a great beach front, known as “Beach Walk,” by relocating South Gulfview Boulevard from the existing right of way. Beach by Design recognized that the redevelopment and revitalization of the properties that front on South Gulfview were and, to a certain extent, still are generally constrained by several factors including small parcel sizes and the Coastal Construction Control Line. As a result, most of the motels and hotels which existed along the east side of South Gulfview would have limited opportunities for redevelopment even if Clearwater Beach were repositioned in the tourism market place. Beach by Design proposed to relocate South Gulfview to the west of its current alignment in order to achieve multiple purposes. First, it would create a drive with a real view of the Beach and the Gulf of Mexico. Second, it would allow the City to vacate the east 35 feet of the existing right of way in favor of the properties along the eastern frontage of existing South Gulfview as an incentive for appropriate redevelopment. Many of those existing properties would substantially benefit from an additional 35 feet of depth which could be used for the addition of facilities and amenities such as safe and comfortable areas for outdoor dining. The creation of Beach Walk and the realignment of South Gulfview Boulevard have all been realized. Several segments of the South Gulfview Boulevard have already been vacated and many of the properties along South Gulfview Boulevard have, in the years since the initial adoption of Beach by Design, been redeveloped with hotels. As noted, this proposal also includes a vacation of a portion of the South Gulfview Boulevard right-of-way which will facilitate the redevelopment of the subject site with a new hotel playing an important role in the ongoing renewal and revitalization of the Beach. Specifically, the vacation will allow for the location of an outdoor seating area providing a strong link between Beach Walk and the proposed hotel as supported by Beach by Design. Therefore, the proposal is consistent with this provision. (Emphasis added). The Staff Report concluded that the proposed project is consistent with applicable provisions of the Community Development Code, applicable components of the City’s Comprehensive Plan, the Beach Walk District of Beach by Design, and the Design Guidelines of Beach by Design. Mark Parry, Senior Planner with the City, testified that “the proposed number of units, 88, is contingent on vacation of that right-of- way,” and if the right-of-way is not later vacated, it “would knock out about eight units.” Mr. Parry also testified that the proposed project provides amenities and an outdoor seating area as specified by Beach by Design. Preston only conducted a very short cross-examination of Mr. Parry, despite having party status to do so. Sue Ann Murphy, an experienced land use planner, also testified that the proposed development complied with all applicable Community Development Code, Comprehensive Plan and Beach by Design requirements. The project architect, Istvan Peteranecz, AIA, was accepted by the Board as an expert. Mr. Peteranecz answered questions from Board members regarding the design of the proposed hotel’s main entrance, including the porte cochere and public seating area adjacent to the Beach Walk and immediately south of Frenchy’s. Preston did not cross- examine Ms. Murphy or Mr. Peteranecz, despite having party status to do so. Substantial competent evidence in the record supports the conclusion that the proposed project is consistent with applicable provisions of the Community Development Code, applicable components of the City’s Comprehensive Plan, the Beach Walk District of Beach by Design, and the Design Guidelines of Beach by Design. At the conclusion of the public hearing, the Board acknowledged Preston’s pending request for continuance and proceeded with discussion. After extensive discussion among the Board members, a motion was made and seconded for the Board “to approve case number FLD2017-07012 based on the evidence, the testimony presented, and the application, the staff report, and at today’s hearing, and to adopt the findings of fact and conclusions of law stated in the staff report with all of the conditions of approval, as listed.” The motion carried. On October 19, 2017, the City entered a Development Order memorializing the Board’s decision. The Development Order includes a Finding of Fact that “[t]he total lot area includes 2,195 square feet of the South Gulfview Boulevard right-of-way which would need to be vacated by the City,” and includes a Condition of Approval that “application for a building permit be submitted no later than October 17, 2019, unless time extensions are granted.” The City represented at oral argument that if the proposed development is not consistent with the Development Order (e.g., if the approximately 2,195 square feet of the South Gulfview Boulevard right-of-way is not vacated), Gulfview will not be able to get a building permit without going through a minor amendment process for a less intense project.
Findings Of Fact In June, 1982, Florida East Coast Railway Company filed an Application for Development Approval for a Development of Regional Impact to be called "F.E.C. Park of Industry and Commerce" to be located in Dade County, Florida. On June 23, 1983, the Board of County Commissioners of Dade County adopted Resolution Z-114-83, a Development Order approving with conditions the development proposed by Florida East Coast Railway Company. A copy of the Development Order was transmitted to the Clerk of the Board of County Commissioners on July 7, 1983. By letter dated July 8, 1983, and received by the Department of Community Affairs on July 11, 1983, the Assistant Director of the Building and Zoning Department of Dade County advised that: In compliance with Section 380, Florida Statutes, we are enclosing , herewith, a copy of Resolution No. Z-114-83, adopted by the Board of County Commissioners on June 23, 1983, approving a development of regional impact applied for by Florida East Coast Railway Company to permit the development of the above-described property for an industrial park complex involving a district boundary change from GU (interim) to IU-C (Industry-Controlled) and an Unusual Use to permit two lake excavations. By letter dated July 19, 1983, the Department of Community Affairs responded to receipt of the copy of the Development Order as follows: We have received the copy of the Florida East Coast Railway Development Order you sent on July 8 in accordance with Chapter 380, Florida Statues[sic]. However, to fulfill the requirements of the law, the Development Order must he signed and include all exhibits. Therefore would you please he kind enough to provide the Department with a signed copy of Resolution #Z-114-83. . . . By letter dated July 27, 1983, and received by the Department of Community Affairs on August 1, 1983, Dade County advised that: In accordance with your letter of July 19, 1983, and our telephone conversation of this date, I am enclosing, herewith, a certified copy of Resolution Z-114-83; as I explained to you on the telephone, the Board of County Commissioners does not sign its resolutions. The only significant difference between the copy of the Development Order received by the Department of Community Affairs on July 11, 1983, and the one received on August 1, 1983, is a certificate signed by a Deputy Clerk in the office of the Clerk of the Circuit Court in Dade County certifying that the latter copy of Resolution No. Z-114-83 was a true and correct copy of the original of that document. Since at least 1946, Dade County has adopted and codified its zoning actions in the following manner. After the Board of County Commissioners acts on zoning applications at a regularly scheduled zoning meeting, zoning resolutions are prepared by Mr. Chester C. Czebrinski, who is in attendance at the meetings. Mr. Czebrinski is an attorney and is the Assistant Director of the Dade County Building and Zoning Department. He is also legal counsel to the Department and is a Deputy Clerk of the Board of County Commissioners. He has performed the functions described herein since 1946. While in attendance at the zoning meeting, Mr. Czebrinski records the action of the Board of County Commissioners on zoning applications noting any conditions adopted by the Board. In preparing the zoning resolution, he uses information obtained from the Clerk of the County Commission as to the resolution number, the names of the Commissioners who made and seconded the motion, and the vote on the resolution. When such resolutions are prepared, they are never re-submitted to the Board of County Commissioners for any further action or review. Copies of final zoning resolutions prepared by Mr. Czebrinski are sent to the Clerk of the County Commission (two original copies), other county departments, to the applicant, and to the attorneys of record. The purpose of transmitting the resolution to those departments and persons is to notify them of the official final action taken by the Board of County Commissioners. Additional copies of resolutions are also placed in the zoning hearing file. All such resolutions transmitted contain a transmittal date on the face of the resolution. The purpose of the transmittal date is to commence the appeal period within which an appeal may be taken to circuit court from the action of the Board of County Commissioners pursuant to the Code of Metropolitan Dade County. All such resolutions transmitted by Mr. Czebrinski are unstamped, uncertified copies of the final zoning resolution. Upon receipt of the transmittal of two copies of the resolution from Mr. Czebrinski, the office of the Clerk of the Board stamps both with the name of the deputy clerk, who for the past eleven years has been Raymond Reid. The letters on one stamp (the large stamp) are larger than the letters on the other, smaller stamp. The copies stamped with the large stamp are also stamped with the county seal. This copy is retained by the Clerk and is never certified. The other copy, stamped with a small stamp, is not stamped with the county seal. This copy is sent to Mr. Czebrinski with a separate certification by the Clerk on a separate page attached to the back of the resolution. Upon request, the Clerk's office will provide a copy of the zoning resolution retained by it. Such a copy is never certified, even for a state agency, unless a specific request for certification is made. An individual requesting certification is required to pay the Clerk a fee of one dollar. Section 2-1, Rule 1.05, Dade County Code, is interpreted and applied by Dade County not to require certification of the resolution physically retained by the Clerk and not to require certification of any copies of that resolution unless a specific request for certification is made. If Mr. Czebrinski receives a request for a copy of a zoning resolution, he provides one of the additional unstamped copies made prior to transmittal of the Clerk. If a certified copy of the resolution is requested, Mr. Czebrinski would make a copy of the resolution with the certification and then place a further certificate on it indicating that it was a copy on file with his office. The above procedures are for normal zoning actions of the Board of County Commissioners and differ from untypical procedures utilized for Zoning Appeals Board (ZAB) resolutions (which are certified by the Building and Zoning Director) and for resolutions pertaining to county airport matters, which are prepared by the County Attorney's office. Where a resolution encompasses an order of the Board of County Commissioners for a Development of Regional Impact, Mr. Czebrinski prepares a resolution in the manner described above and distributes it to all of the previously mentioned parties, and in addition to the Florida Department of Community Affairs and to the South Florida Regional Planning Council. Mr. Czebrinski has had responsibility for transmitting copies to the State Land Planning Agency pursuant to Chapter 380, Florida Statutes, since the adoption of the state law. The resolutions transmitted have been blank, uncertified copies. Each copy is accompanied by a transmittal letter which is signed by Mr. Czebrinski. Although in a few instances the files of the Department of Community Affairs contain items where the typical County Commission zoning procedure was not applicable, this was because either the special procedure of the ZAB or airport zoning applied, because the Department has specifically requested a certified copy in an isolated case, or because the Department had received a transmittal from a non-county source. On September 12, 1983, the Department of Community Affairs filed a Notice of Appeal with the Florida Land and Water Adjudicatory Commission objecting to various portions of the Development Order.
The Issue The issue is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Poinciana Community Development District.
The Issue Whether the proposed amendment to the St. Johns County 2015 Future Land Use Map (FLUM), adopted by Ordinance No. 2002-31, is "in compliance" with the relevant provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part, II, Florida Statutes. A second issue raised by St. Johns County (County) and The Estuaries Limited Liability Company (Estuaries) is whether, if the proposed amendment is not "in compliance," it is nevertheless valid and authorized pursuant to Chapter 70, Florida Statutes, the Bert J. Harris, Jr., Private Property Rights Protection Act.
Findings Of Fact The Parties Petitioner, Julie Parker, resides in St. Augustine, Florida, less than one and one-half miles from the proposed project site. Parker also owns other property in St. Johns County. Parker submitted oral comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM Amendment and Ordinance No. 2002-31. The parties agreed that Parker has standing in this proceeding. The County is a political subdivision of the State of Florida. The County adopted its Comprehensive Plan in 1990. The County proceeded with the evaluation and appraisal report process in 1997 and 1998. This process ultimately resulted in the adoption of the 2015 Comprehensive Plan Amendment, Goals, Objectives, and Policies, and Adopted EAR-Based Comprehensive Plan Amendment in May 2000 (May 2000 EAR-Based Plan Amendment), which was subjected to a sufficiency review by the Department and found "in compliance." Estuaries owns the 9.99 acres (the Property) that is the subject of the FLUM Amendment. Estuaries also owns approximately 8.5 acres outside, adjacent to, and west of the Property. The 8.5 acres are subject to a Conservation Easement, which prohibits any development activity thereon. (The total contiguous land owned by Estuaries is approximately 18.5 acres.) The parties stipulated that the legal description of the Property attached to Ordinance No. 2002-31 contains less than 10 acres. Estuaries submitted comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM amendment. Estuaries has standing to participate as a party in this proceeding. The Property The Property is part of a larger tract owned by Estuaries, i.e., approximately 9.9 acres out of a total tract of approximately 18.5 acres. The entire 18.5 acre tract is located on Anastasia Island, a barrier island, which extends from the St. Augustine Inlet to the Matanzas Inlet. According to the 2000 Census, there are approximately 12,000 dwelling units on Anastasia Island. This includes condominium units and single-family units. The approximately 18.5-acre site is also located in the Coastal High Hazard Area under the County May 2000 EAR-Based Plan Amendment. The Property is part of Butler Beach (bordering the Atlantic Ocean), which is an historic area because it was settled in the early 1900's by black citizens and provided them with access to the beach, which was previously unavailable. However, no historic structures or uses have occurred on the Property. The entire 18.5 acre tract is located on the south side of Riverside Boulevard. The Property is located approximately 300 feet west of Highway A1A South (A1A runs north and south). The Intracoastal Waterway and the Matanzas River are west and adjacent to the 18.5 acres. The Estuaries site is also located adjacent to the Guana Tolomato Matanzas National Estuarine Research Reserve (NERR). The Property is vacant, partially wooded, and also consists of undeveloped wetlands. Of the 9.99 acres, approximately 6.7 acres are uplands and developable, and 3.29 acres are wetlands. As noted, the remaining approximately 8.5 acres of the Estuaries' property, and to the west of the Property, is subject to a Conservation Easement in favor of the County. The properties adjacent to the Property include the following: Single-family residential units are located along and on the north side Riverside Boulevard. The existing FLUM designations for this area are Residential Coastal Density A and C, with the existing zoning of open rural (OR). (Residential Coastal Density C permits 2.0 to 4.0 units per acre.) The Intracoastal portion of Butler State Park is to the south of the Property, with a FLUM designation of parks and open space and existing zoning of OR and is not in a conservation area. To the east of the Property is a utility substation site, Butler Avenue, various commercial uses, Island House Rentals or Condominiums (three-story oceanfront condominiums), and the Mary Street Runway. There is another condominium called Creston House, directly south of the Butler Park (ocean portion) area (distinguished from the Butler State Park), consisting of three stories. (Butler Park and Creston House are located east of A1A and southeast of the Estuaries property.) The existing FLUM designations are Coastal Residential Coastal Density A and C, and have existing zoning designations of Residential General (RG)-1 and Commercial General (CG). There are no Residential Density D FLUM land use designations in the contiguous area. In short, the Property is proximate to a state park, a densely developed area comprised of small residential lots of 25 by 100 feet lots, and the two three-story condominiums, which were built prior to the adoption of the County's 1990 Comprehensive Plan. The County's Comprehensive Plan and EAR-Based Amendments On September 14, 1990, the County adopted a Comprehensive Plan-1990-2005, with amendments (the 1990 Plan). Under the 1990 Plan, the Property was assigned a Residential Coastal-A land use designation under the existing FLUM, which meant that residential development was restricted to no more than one residential unit per upland (non-wetland jurisdictional) acre. Under this designation, approximately seven units could have been built on the Property. The zoning on the Property was and is RG-1. According to the County, at least as of a June 11, 1999, letter from the County's principal planner, Timothy W. Brown, A.I.C.P., to Kevin M. Davenport, P.E., the total units which would be allowed on the Property were 116 multi-family units, derived after making a detailed density calculation based in part on using 40 percent of the wetlands used for the density calculation. In May 2000, the County adopted the EAR-Based Plan Amendment, with supporting data and analysis, which the Department of Community Affairs found to be "in compliance." As required by Chapter 163, Part II, Florida Statutes, this would have included data and analysis for the Future Land Use Element (FLUE), which was adopted as part of these plan amendments. This is part of the data and analysis which supports the FLUM Amendment at issue in this proceeding. The May 2000 EAR-Based Plan Amendment continued the Residential Coastal A land use designation of the Property, which allows 0.4 to 1.0 units per acre. (Residential Coastal B allows 2.0 units per acre; Residential Coastal C allows 2.0 to 4.0 units per acre; and Residential Coastal D allows 4.0 to 8.0 units per acre.) The Residential Coastal A designation authorizes residential and non-residential uses, such as schools, public service facilities, police, fire, and neighborhood commercial. Restaurants and banks without drive-thru facilities, gasoline pumps, and professional office buildings are examples of neighborhood commercial uses. The May 2000 EAR-Based Plan Amendment does not limit the lot size, subject to limitations on, for example, impervious surface ratios, which do not change regardless of whether the land use designation is Residential Coastal A or D. Also, any development would also have to comply with the textural provisions of the May 2000 EAR- Based Plan Amendment, including the coastal and conservation elements. The Circuit Court Litigation There are many documents in this case which pertain to the litigation between Estuaries and the County. The civil action was filed in the Circuit Court of the Seventh Judicial Circuit, in and for St. Johns County, Florida, and styled The Estuaries Limited Liability Company v. St. Johns County, Florida, Case No. CA-00271. On February 11, 2000, Estuaries filed a Complaint against the County "relating to certain representations made by the County in connection with the development of certain real property located south of St. Augustine Beach in St. Johns County, Florida." A Second Amended Complaint was filed on or about May 30, 2001. Estuaries claimed that County staff made representations to Estuaries, which resulted in Estuaries having a vested right to develop its Property up to a maximum of 116 multi-family residential units. (The County took the position that Estuaries could build no more than 25 units on the Property.) Estuaries claimed that it had vested rights based upon a claim of equitable estoppel against the County. (One of Estuaries' claims was brought pursuant to the Bert Harris, Jr., Private Property Rights Protection Act, Chapter 70, Florida Statutes.)1 After discovery and the denial of motions for summary judgment, the parties entered into a "Settlement Agreement and Complete Release" (Settlement Agreement). The "General Terms of Settlement" in the Settlement Agreement provided in part: Estuaries shall prepare and file an application to amend the future land use map of the St. Johns County Comprehensive Plan to amend the designation of only that portion of the Property such that Estuaries may build 56 multi-family residential units on the Property and such that the amendment be a "Small-scale Amendment" as defined by the Local Government Comprehensive Planning Act. Estuaries agrees on behalf of itself, its successors and assigns to build not more than 56 units on the Property. County will waive or pay the application fee and will expedite its processing. The parties will forthwith prepare and submit to the Court a joint motion for the approval of this Agreement pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act, §70.001(4)(d)2. During the review and consideration of the amendment application, the County will expeditiously process the Estuaries' revised construction plans and, in connection therewith, the construction codes in effect as of November 13, 2001 (to the extent the County may do so without violating county, state or federal law), the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land Development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply. In all other respects, the revised construction plans shall comply with all other Comprehensive Plan and County ordinances and regulations. On or about November 16, 2001, counsel for the parties signed a Joint Motion, requesting the circuit court to approve the Settlement Agreement pursuant to Section 70.001(4)(d)2., Florida Statutes. On November 16, 2001, Circuit Judge John Michael Traynor, entered an "Order Approving Settlement Agreement pursuant to Bert J. Harris, Jr. Private Property Rights Protection Act." Judge Traynor stated in part: The central issue in this litigation has been the number of dwelling units that would be permitted on the Property. The issues in the case are legally complex and, although the credibility of the testimony and authenticity of the exhibits expected to be introduced was not expected to be substantially in dispute or challenged, the meaning of the testimony and the meaning and inferences to be drawn from such evidence was very much in dispute. The issues included the extent of vested rights, the extent to which estoppel may be applied to the County, contractual liability, and potential liability under the Bert J. Harris, Jr. Private Property Rights Protection Act . . . and the relief requested included the request for a declaration that the Plaintiff is entitled to build up to 116 dwelling units on the Property and damages against the County. Judge Traynor also "Ordered and Adjudged," in part: Pursuant to Florida Statute § 70.001(4)(a) & (c) and applicable law, this Court finds that proper notice of a Bert Harris Act claim was timely provided to the County, and other governmental entities, and the County did make a written settlement offer to the Plaintiff, in accordance with the Bert Harris Act, that was accepted by Plaintiff. Florida Statute § 70.001(4)(c) permits, inter alia, for an adjustment of land development provisions controlling the development of a plaintiff's property; increases or modifications in the density, intensity, or use of areas of development; the transfer of development rights; conditioning the amount of development or use permitted; issuance of a development order, a variance, special exceptions, or other extraordinary relief; and such other actions specified in the statute. While the parties may dispute whether an amendment is necessary to the County's Comprehensive Plan, the parties have agreed that the Plaintiff shall submit a small-scale amendment to the County for consideration and approval pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act. . .; without waiver of either party's rights to contest and defend the necessity of submitting such an amendment, in light of this Court's approval of the settlement agreement pursuant to the Bert Harris Act and applicable law. The Court finds that the Settlement Agreement and Complete Release is fair, reasonable and adequate; is in the best interests of the parties and protects the public interest served by the Local Government Comprehensive Planning and Land Development Regulation Act. . .; and is the appropriate relief necessary to prevent the County's regulatory efforts from inordinately burdening the Property with regard to density, impact on public services, the environment and the public health, safety and welfare of the community and the rights of individuals to reasonably utilize their property and to rely on the representations of government, taking into consideration the risks that both parties had in this litigation. This litigation has been ongoing for more than 18 months, and substantial discovery and record has been presented to the Court that provides ample basis for this Court's approval of this settlement as being fair, reasonable and adequate and appropriate under the Bert Harris Act. There is no evidence before the Court that would suggest that the proposed settlement is the result of any collusion among the parties or their counsel. In fact, the record is to the contrary, whereby counsel on both sides have aggressively and zealously pursued the interests of their respective clients. . . . Judge Traynor directed the parties to implement the terms of the Settlement Agreement, "subject to the right of the public to comment at an appropriate public hearing pertaining to the above referenced small scale amendment to the County's Comprehensive Plan, and shall cooperate to accomplish in good faith the responsibilities under the Settlement Agreement and Complete Release." There is no evidence that Judge Traynor's Order has been rescinded or otherwise modified. There is no statutory authority to collaterally attack Judge Traynor's Order in this proceeding nor is there any authority which provides that this Order can be ignored. Also, this is not the appropriate proceeding to determine whether Estuaries has, in fact, vested rights. Accordingly, Judge Traynor's Order, approving the Settlement Agreement, is accepted as binding authority. The Small Scale Development Application In compliance with Judge Traynor's Order and the Settlement Agreement, on March 26, 2002, Estuaries filed a "Small Scale Amendment Comprehensive Plan Amendment Application Form" with the County. Estuaries requested a change in the Property's FLUM designation from Residential Coastal A, Zoning RG-1 to Residential Coastal D, Zoning RG-1. Estuaries represented, in part, that the Property consisted of 9.99 acres of vacant land, including 3.2 acres of wetlands and approximately 6.7 acres of developable land (uplands) "which will be developed into a 56 unit Multi-Family Condominium." County staff reviewed the application and recommended approval. As part of the agenda item for consideration by the St. Johns County Board of County Commissioners, County staff, in light of the criterion of "Consistency with the Goals, Objectives and Policies of the Comprehensive Plan, State Comprehensive Plan and the Northeast Florida Regional Policy Plan," stated: "[t]he approved Settlement Agreement was filed pursuant to Chapter 70.001." With respect to "Impacts on Public Facilities and Services," County staff stated: "The project has received a Certificate of Concurrency addressing the impacts on transportation, water, sewer, recreation, drainage, solid waste and mass transit. The Certificate of Concurrency is based on impacts of 84 multi-family dwelling units. Pursuant to the Settlement Agreement, the project contains 56 multi-family dwelling units. St. Johns County provides central water and sewer." With respect to "Compatibility with Surrounding Area," County staff stated: "The area is developed with a mixture of residential, commercial, park (Butler Park), and vacant land of various zoning." According to Mr. Scott Clem, the County's Director of Growth Management Services, County staff felt that there were adequate public facilities for a 56-unit project, because Estuaries had previously demonstrated that facilities were available for an 84-unit project. However, County staff expressly noted in the Planning Department Staff Report submitted to the Planning and Zoning Agency that "[t]here are no development plans included in the Application. However, all site engineering, drainage and required infrastructure improvements will be reviewed pursuant to the Development Review Process to ensure that the development complies with all applicable federal, state and local regulations and permitting requirements. No permits shall authorize development prior to compliance with all applicable regulations." At this point in time, County staff were "analyzing the potential for 56 units to be on the property. It was a site specific analysis at that point." On April 18, 2002, the Planning and Zoning Agency unanimously recommended approval of the FLUM amendment. After a properly noticed public hearing, on May 28, 2002, the County approved the FLUM Amendment in Ordinance 2002- 31. In Ordinance 2002-31, the County approved the FLUM Amendment at issue, which changed the FLUM land use classification of the Property from Residential Coastal A to Residential Coastal D. Ordinance 2002-31 also provided: "The Land Uses allowed by this Small Scale Comprehensive Plan Amendment shall be limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height." The Challenge Parker filed an Amended Petition challenging the lack of data and analysis to support the FLUM Amendment; challenging the increase in density of the Property located in a Coastal High Hazard Area; challenging the internal consistency of the FLUM Amendment with the May 2000 EAR-Based Plan Amendment; challenging the decision by the County to process the application as a small scale development amendment; and challenging the failure to provide Parker with adequate notice of a clear point of entry to challenge Ordinance No. 2002-31. Notice The County provided notice, by newspaper, of the Board of County Commissioners' meeting of May 28, 2002. Before this meeting, a sign was placed on the Property, providing notice of the meeting. Parker personally attended the May 28, 2002, meeting and addressed the Commission regarding the FLUM Amendment. Ordinance No. 2002-31 provided: "This ordinance shall take effect 31 days after adoption. If challenged within 30 days after adoption, this ordinance shall not become effective until the state land planning agency or the Administration Commission issues a final order determining the adopted small scale amendment is in compliance." This Ordinance does not advise a person of the right to challenge the Ordinance pursuant to Chapter 120, Florida Statutes, the Uniform Rules of Procedure, or Section 163.3187(3)(a), Florida Statutes. This type of notice is not required for the reasons set forth in the Conclusions of Law. Does the FLUM Amendment, covering 9.99 acres, involve a "use" of 10 acres or fewer, pursuant to Section 163.3187(1)(c)1., Florida Statutes? "A small scale development amendment may be adopted only [if] [t]he proposed amendment involves a use of 10 acres or fewer." Section 163.3187(1)(c)1., Florida Statutes.2 In the Amended Petition and in her Prehearing Stipulation, Parker contends that the "use," which is the subject of the FLUM Amendment, relates to more than the 9.99 acre parcel and, therefore, the FLUM Amendment is not a small scale development amendment defined in Section 163.3187(1)(c)1., Florida Statutes. Parker contended that because the FLUM Amendment authorizes a maximum of 56 residential units to be developed on the Property, and the maximum density under the Residential Coastal D and RG-1 zoning designations is 42.12 units, using the on-site wetlands density bonus, that Estuaries "must be using the off-site wetlands that are contained within the 18.5 acre parcel to obtain the density credit necessary to reach 56 units for the site under" the FLUM Amendment. The 56 residential unit maximum was the product of the circuit court litigation and Settlement Agreement, as approved by Judge Traynor, which resolved the differences between the County and Estuaries regarding the maximum residential density which could be authorized on the Property. Parker also contended that because Estuaries may use a proposed lift station owned by the County off-site, that this causes the proposed "use" of the Property to exceed 10 acres. It appears that at some prior time in the "vesting rights" chronology of events, Magnolia S Corporation, in order to downscale the project, agreed to sell a 40' by 80' parcel to the County, located adjacent to the Property and in the northeast portion, to expand the existing County lift station on Riverside Boulevard. There is a lift station adjacent to the Property that serves as "a repump station that serves the development along Riverside [Boulevard] west of the lift station and serves all the development in St. Johns County on the island south of Riverside Boulevard." It is proposed that sewage effluent from development on the Property would be deposited on site and then pumped into an adjacent force main which eventually ends up in the station. According to Mr. Kevin Davenport, Estuaries' civil engineer, "56 units added to that pump station would be extremely miniscule in the overall amount of sewage that goes through it." Thus, Estuaries anticipates having their own on-site lift station, which "would be pumped through a pipe to the Riverside right-of- way, where it would connect to an existing county-owned pipe which currently goes to the lift station." Mr. Clem stated that "[u]tilities are very commonly done off site where water or sewer distribution or transmission lines are constructed to the site." This would include the use of off- site lift stations. However, the proposed use of the lift station does not necessarily compel the conclusion that the FLUM Amendment exceeds 9.99 acres. If this were so, any proposed use of any off-site utilities would cause a pro rata calculation and increase of the size of the site providing the service, then be added to the 9.99 acres. This is not a reasonable construction of Section 163.3187(1)(c)1., Florida Statutes. Parker also claimed that when the Estuaries granted the County a Conservation Easement for the approximately 8.5 acres (out of 18.5 acres) of wetlands adjacent to the Property, Estuaries "used" this property to secure the FLUM Amendment, and therefore, exceeded the 9.99 acres. The Conservation Easement precludes development activity on the approximately 8.51 acres. ("The purpose of this Conservation Easement is to assure that the Property will be retained forever in its existing natural condition and to prevent any use of the Property that will impair or interfere with the environmental value of the property." Prohibited uses include "[a]ctivities detrimental to drainage, flood control, water conservation, erosion control, soil conservation, or fish and wildlife habitat preservation.") The "use" of the 8.51 acres as a potential visual amenity for potential residents on the Property is not a "use" within a reasonable reading of Section 163.3187(1)(c)1., Florida Statutes. Parker also suggested that Estuaries will need to improve Riverside Boulevard (paving and drainage) and the public right-of-way consisting of approximately 1.51 acres, which is not owned by Estuaries. It appears that Riverside Boulevard is already open, improved, and paved. Also, Mr. Clem stated that it is common to have off-site improvements associated with a project, which might include intersection or roadway improvements that are not on or within the project site. Mr. Clem opined that while these improvements would be required for the project, they would have been off-site. Some improvements, such as improvements to Riverside Boulevard, would most likely benefit the general public, and not be limited to the future residents on the Property. It is common for local governments to require improvements to public infrastructure as a condition of development. These off-site improvements do not necessarily make the "development activity" larger than the size of the landowner's site, here the Property. Data and Analysis Parker contended that the FLUM Amendment is not supported by appropriate data and analysis. As noted herein, Estuaries sought approval of a FLUM Amendment for its Property, i.e., a land use change to the FLUM. No text (goals, objectives, and policies) changes to the May 2000 EAR-Based Amendment were requested nor made. This is normal for a "site-specific small scale development activity." Section 163.3187(1)(c)1.d., Florida Statutes. Consideration of the FLUM Amendment in this proceeding is unusual for several reasons. First, the necessity for the FLUM change arose as a result of the Settlement Agreement, approved by Judge Traynor, which resolved the differences existing between the County and Estuaries regarding the number of units which could, as a maximum number, be developed on the Property. Second, the data and analysis, which normally is presented to the local government, here the County, at the time the plan amendment is adopted, is not in its traditional format here, largely, it appears, because of the manner in which consideration of the FLUM Amendment arose. Nevertheless, this situation is not fatal for, under existing precedent, see, e.g., Conclusion of Law 96, data, which was in existence at the time the FLUM Amendment was adopted by the County, may be considered in determining whether there is, in fact, adequate data supporting the FLUM Amendment. The data relied on by the County and Estuaries to support the FLUM Amendment was compiled and initially presented to the County on or about July 6, 1999, when Estuaries sought authorization from the County for a proposed project to construct 84 multi-family residential units on the same general area as the Property. This started the County's development review process. Estuaries began the process at this time, believing that it had "vested rights" to develop the Property. Mr. Clem explained that the development review process is "extremely detailed. It involves 11 or 12 different programs within the [C]ounty, looking at everything from the actual site plan itself, water and sewer provision, for all the things that would go into site construction, roadway design, the environmental considerations. We basically look at how this site will be developed in accordance with the land development code and any other regulations. We ensure that the water management district permits are obtained, if applicable, or other state agencies." This record contains County Department comments which pertain to a host of issues, including but not limited to, drainage, traffic, fire services, urban forestry (trees and landscape on-site), utilities, zoning (e.g., buffers, setbacks), concurrency requirements, etc. County staff raised questions (identified as submittals) on at least four separate occasions followed by written responses by the applicant on at least three occasions. However, not all issues were resolved. A July 1999, Land Development Traffic Assessment, prepared by Beachside Consulting Engineers, Inc., was submitted to the County as part of the request for a concurrency determination. The analysis "indicates that the roadway segments within the impact area will continue to operate at an acceptable LOS through the construction of this project." The "Summary" of the assessment states: "This project meets traffic concurrency standards, as defined by the St. Johns County Concurrency Management Ordinance, for all roads within the traffic area." "Stormwater Calculations" for the 84-unit, multi-family housing development were also provided in a report dated July 7, 1999. The applicant also furnished the County with a "geotechnical report," which analyzed the soil conditions related to storm water ponds and to the placement of the buildings and the support of the buildings on the site. Soil borings and other testing revealed the capabilities of the soil for, for example, percolation rates for the storm water ponds. There is no evidence that there are any specific historic buildings or geological or archeological features on the Property. In July 1999, the applicant submitted an application for concurrency. At that time, County staff analyzed this information to ensure that public facilities and services were in place to serve the project. This application was reviewed in relation to the County's concurrency management provisions of the County's Land Development Code. On September 3, 1999, the County's Planning Department prepared a report regarding this application and recommended "approval of a Final Certificate of Concurrency with Conditions for the development of 84 residential condominium units." (Staff made findings of fact, which included a discussion of traffic, potable water/sanitary sewer, drainage, solid waste, and mass transit.) On September 8, 1999, the Concurrency Review Committee met and adopted the Staff's Findings of Fact with conditions, including but not limited to, the applicant providing a copy of the Department of Environmental Protection permits "necessary for connection to central water and wastewater service prior to Construction Plan approval," and "[t]he applicant receiving approval of construction/drainage plans from the Development Services Department prior to commencement of construction." The Final Certificate of Concurrency with Conditions was issued on October 1, 1999, and was due to expire on September 8, 2001. However, the Settlement Agreement provided, in part, that "the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply." (Emphasis added.) (Ms. Teresa Bishop's (County Planning Director) November 7, 2001, letter indicated, in part, that Estuaries' request for "tolling [of the Final Certificate of Concurrency] cannot be reviewed until the outcome of the pending litigation is known. . . . After the litigation is concluded, your request for tolling may be resubmitted for review." The Settlement Agreement post-dates this letter.) In evaluating a small scale plan amendment, County staff evaluates the availability of public services which, according to Mr. Clem, is "one of the major components," and County staff "is looking at virtually the same issues that [the County] would look at in concurrency to evaluate and make recommendations on small scale amendments." Mr. Clem also advised that the County's analysis of the 84-unit project did not involve, and was not based on, "a specific site plan with buildings at a certain location or parking in a certain location. It was more an 84- unit project with certain data and analysis associated with that site or project." By letter dated October 4, 1999, the Department of Environmental Protection indicated that it had received a "Notification for Use of the General Permit for Construction of an Extension to a Drinking Water Distribution System" submitted for the Estuaries project. The Department stated further: "After reviewing the notice, it appears that your project will have minimal adverse environmental effect and apparently can be constructed pursuant to a general permit as described in Chapter 62-555, F.A.C." The permit expires on October 4, 2004. This permit allows the applicant to demonstrate that it will offer a central water service, available to be served through the County's utility department. This would ensure that there is sufficient potable water available. By letter dated October 6, 1999, the Department of Environmental Protection also issued a permit for the construction of a sewage collection/transmission system (domestic waste). By letter dated November 11, 1999, the St. Johns Water Management District issued a "formal permit for construction and operation of stormwater management system." This permit authorized "[a] new stormwater system with stormwater treatment by wet detention to serve Estuaries Multi-family Development, a 5.88 acre project to be constructed as per plans received by the District on 7/12/1999." This permit did not relieve the applicant "from the responsibility for obtaining permits from any federal, state, and/or local agencies asserting concurrent jurisdiction over this work." Mr. Clem believed that this permit was evidence that "the state agencies ha[d] considered the environmental issues relating to storm water and all the issues that they deal with in issuing a permit." The Property is located in a "development area boundary" as indicated on the FLUM, which means that these areas allow "development potential." Other areas, such as rural silviculture and agricultural lands, are outside the development area and only limited and low density development is allowed. Conservation areas are also designated on the FLUM. Given the location of the Property within the development area boundary, the County thereby eliminated the necessity of producing some of the data normally required.3 Mr. Clem explained: So by being within a development area boundary it's in essence already had rights to develop, depending on the classification what those rights are, whether it's residential, commercial, industrial. So by virtue of the fact that this site [the Property] was already in the developmental boundary, we didn't deal with issues such as need, which is a big issue in the county when we add developmental boundary. Is there need for additional residential units, and so forth. So that is one part of the answer. The other part is when we're looking at changing from one residential classification to another, we're not dealing with the same issues we might have if it was going from residential to commercial or residential to industrial. So in the context of a plan amendment like this, we're looking at what can this land support in terms of density and are there public facilities available? Is it generally compatible with the surrounding area? What are the potential impacts to natural resources? So those things are still analyzed, but they're done in a probably more confined context. And then the other factor is this being a small scale amendment further reduces the amount of data that is typically done. And if it was a major amendment, there's a whole new range of issues when we deal with major amendments. By definition, they can cause more of an impact. For Mr. Clem, the data and analysis which was generated during the concurrency process for the proposed 84-unit project was significant and would be applicable to a proposed 56-unit project. Mr. Clem opined that the data for this small scale amendment was "[f]ar in excess of anything [he had] seen in the county." Environmental Impacts of the FLUM Amendment The area on and around the Estuaries' property is an area of tidal marsh intermixed with upland scrub. Many wildlife species have been seen utilizing the wetlands on and adjacent to the Estuaries' site (the 18.5 acre parcel). These include woodstorks, snowy egrets, roseate spoonbills, little blue herons, tri-colored herons, white ibis, and ospreys. Owls, foxes, raccoons, opossums, fiddler crabs, clams, fish, shrimp, and turtles also frequent the area. Parker's environmental scientist and ecologist, Mr. Robert Burks, testified to the environmental effects of any development of the Property subject to the FLUM Amendment. Mr. Burks has worked with American Institute of Certified Planners (A.I.C.P.) designated planners, providing them with opinions with respect to environmental issues. But he is not an expert in land use planning. The National Estuarine Research Reserve (NERR) is a program of the National Oceanic and Atmospheric Administration, a federal program administered by the Department of Environmental Protection. It is a program to do research and education on estuarine systems. The estuarine ecosystem composed of the Guana, Tolomato, and Matanzas Rivers has been designated as a NERR. There is testimony that development and increases in population in the area, in general, have been responsible for, for example, the decline and closure of shell-fishing and decline of water quality in the area. Conservation Goal E.2 provides: The County shall conserve, utilize, and protect the natural resources of the area, including air, water, wetlands, water wells, estuaries, water bodies, soils, minerals, vegetative communities, wildlife, wildlife habitat, groundwater recharge areas and other natural and environmental resources, insuring that resources are available for existing and future generations. Objective E.2.2 provides: Native Forests, Floodplains, Wetlands, Upland Communities, and Surface Water The County shall protect native forests, floodplains, wetlands, upland communities, and surface waters within the County from development impacts to provide for maintenance of environmental quality and wildlife habitats. Policy E.2.2.5.(a)(1)(b) provides: The County shall protect Environmentally Sensitive lands (ESLs) through the establishment of Land Development Regulations (LDRs) which address the alternate types of protection for each type of Environmentally Sensitive Land. Adoption and implementation of the Land Development Regulations shall, at a minimum, address the following issues: For Wetlands, Outstanding Florida Waters (OFW), and Estuaries: establish and modify buffers between the wetlands/ OFW/ estuaries and upland development as stated in the County's Land Development Regulations (LDRs), and as follows: * * * Except a minimum of a 50 ft. natural vegetative upland buffer shall be required and maintained between the development areas and the St. Johns, Matanzas, Guana and Tolomato Rivers and their associated tributaries, streams and other interconnecting water bodies. Policy E.2.2.13(b)(6) provides: By December 1999, the County shall develop and adopt guidelines and standards for the preservation and conservation of uplands through various land development techniques as follows: (b) The County shall recognize the following vegetative natural communities as Significant Natural Communities Habitat. Due to the rarity of these vegetative communities, a minimum of 10 percent of the total acreage of the Significant Natural Communities Habitat (excluding bona fide agriculture and/or silviculture operations) shall be preserved and maintained by the development. * * * (6) Scrub. Where on-site preservation of the native upland communities are not feasible, the County as an alternative shall accept a fee in lieu of preservation or off-site mitigation in accordance with the County Land Development Regulations. Mr. Burks opined that "generally," and if Goal E.2 is read "literally", the FLUM Amendment did not meet this Goal and afford protection for wetlands, vegetative communities, estuaries, wildlife and wildlife habitat. He perceives that "[a]nytime there's a development there will be impacts to the estuarine--the water bodies because of surficial runoff from the parking lots, from the impervious surfaces, and it will carry pollutants into those areas. And that includes soils also. . . . As far as upland habitat, when you develop an area like this, unless you leave certain parts, the upland habitat will be negatively impacted obviously. There won't be the trees there, the vegetation that was normally there before the development." For Mr. Burks, any development of the Property would generally be inconsistent with the Plan provisions recited above. But, his opinion is specifically based on how each system or plan for the site, or here, the Property, is actually designed--"it would depend on the design of the housing structures themselves and where they were placed. If you design anything in a manner which is going to protect that buffer and literally protect the water quality and the runoff in that area, then you may--it may not violate it." For example, if the Property were developed with 25-foot buffers instead of 50-foot buffers, Mr. Burks says that, from an ecology standpoint, there would be insufficient protection for wildlife, including threatened and endangered species. He offered the same opinion if the FLUM Amendment did not require a minimum ten percent set aside of the total acreage for significant natural communities habitat on the Property, such as, scrub of approximately 6.7 acres, a protected vegetative community existing on the upland portion of the Property. Furthermore, Parker introduced into evidence proposed site plans for the Property dated May 24, 2002, which show, in part, a 25-foot buffer, not a 50-foot buffer.4 Parker contends that these site plans are the best available data and analysis regarding whether the FLUM Amendment is "in compliance." However, the purpose of this proceeding is to determine whether the FLUM Amendment is "in compliance," not whether specific draft, and not approved, site plans are "in compliance" with the May 2000 EAR-Based Plan Amendment or the LDRs. If site plans are approved and a development order issued by the County, Parker, and any other aggrieved or adversely affected party may file a challenge pursuant to Section 163.3215, Florida Statutes. But, this is not the appropriate proceeding to challenge proposed site plans. This is not to say that proposed site plans cannot be considered data and analysis; only that they are not incorporated in the FLUM Amendment and are not subject to challenge here. See The Sierra Club, et al. v. St. John County, et al., Case Nos. 01- 1851GM and 01-1852GM (Recommended Order May 20, 2002; Final Order July 30, 2002). Internal Consistency Parker contended that the FLUM Amendment is inconsistent with several provisions of the May 2000 EAR-Based Plan Amendment. Some of these issues have been discussed above in Findings of Fact 68 to 80, pertaining to environmental considerations. Another issue is whether the FLUM Amendment, which changes the maximum density on the Property, is inconsistent with Policy E.1.3.11 which provides: "The County shall not approve Comprehensive Plan Amendments that increase the residential density on the Future Land Use Map within the Coastal High Hazard Area." See also Policy A.1.5.6 which offers almost identical language. The FLUM Amendment changes the land use designation of the Property, and allows a land use "limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height," and thus allows a potential increase in the density of the Property, located in the Coastal High Hazard Area. This resulted from the Settlement Agreement. In Policy A.1.11.6, [t]he County recognizes that the Plan's Objectives and Policies sometime serve to support competing interests. Accordingly, in such instances, and in the absence of a mandatory prohibition of the activity at issue, it is the County's intent that the Plan be construed as a whole and that potentially competing Objectives and Policies be construed together so as to render a balanced interpretation of the Plan. It is the further intent that the County interpretation of the Plan, whether by County staff, the Planning & Zoning Agency, or the Board of County Commissioners, shall be afforded appropriate deference. County interpretations of the Plan which balance potentially competing Objectives and Policies shall not be overturned in the absence of clear and convincing evidence that the County interpretation has misapplied the Plan construed as a whole. The May 2000 EAR-Based Plan Amendment Goals, Objectives, and Policies must be read in their entirety and individual provisions cannot be read in isolation. Objective E.1.3 requires the County to engage in "post disaster planning, coastal area redevelopment, and hurricane preparedness. The County shall prepare post-disaster redevelopment plans which reduce or eliminate the exposure of human life and public and private property to natural hazards." Mr. Clem opined that Policy E.1.3.11, see Finding of Fact 81, expressed "the general intent of limiting population increases that would result in adverse impacts to hurricane evacuation of the coastal areas," and, in particular, the "barrier islands." (Policy E.1.9.5, under Objective E.1.9 Hurricane Evacuation Time, provides: "St. Johns County shall attempt to limit the density within the Coastal High Hazard Area as allowed by law.") Mr. Clem further stated that the FLUM Amendment, which restricted the Property to a maximum of 56 residential units, from a possible 116 unit maximum, was consistent with the Policy which restricts density within the coastal hazard zone. In rendering his opinions, Mr. Clem balanced the above- referenced Policies with Objective A.1.16, pertaining to "private property rights." When these May 2002 EAR-Based Plan Amendment provisions are read together, it appears that Mr. Clem's interpretations are not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Community Affairs concluding that the FLUM Amendment adopted by St. Johns County in Ordinance No. 2002-31 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 17th day of December, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2002.
