Findings Of Fact On or about February 13, 1995, Petitioner, Hillary Sklar, filed Petitioner's Second Amended Petition. Ms. Sklar has challenged the Department's determination that an amendment to the City's comprehensive plan adopted by Ordinance No. 94-2-2 was "in compliance." In the second amended petition Ms. Sklar made the following allegations concerning her standing to institute this proceeding: * * * 2. The Petitioner's address is 11321 Southwest 49th Place, Fort Lauderdale, 33330, in the County of Broward, Florida. * * * 4. On February 8, 1994, the Respondent passed Ordinance NO. 94 -2 -2 authorizing the implement- ation of Land Use Plan Amendment 94 - S - 1. The Land Use Plan Amendment affects property located at 11791 Southwest 49th Street, Cooper City, in the County of Broward. . . . * * * Petitioner's property is located in a section of unincorporated Broward County which abuts and adjoins the property in question. Petitioner's property has been defined by Respondent as an "enclave." Petitioner's property is similarly situated to those of property owners in Cooper City and will be affected more than those property owners located in Cooper City; including, but not limited to, the allegations contained in Paragraphs 10 through 17, inclusive. Petitioner made objections to the ordinance at the February 8, 1994 City Council meeting discussing adoption of the ordinance. . . . * * * Ms. Sklar has still failed to allege that she resides, owns property or operates a business located with a City of Cooper City address or which otherwise is subject to the jurisdiction of the City of Cooper City. The oral objections made by Ms. Sklar were made at a public hearing of the City of Cooper City Council held on February 8, 1994. According to the minutes of that meeting, Ms. Sklar "said the zoning is a done deal and the annexation and sale was a done deal. Why should it be a done deal before the Public Hearing was held, she asked." The factual information contained in the Preliminary Statement of this Recommended Order is hereby incorporated by reference.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order dismissing the Petitioner's Second Amended Petition, filed by Hillary Sklar. DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1995. COPIES FURNISHED: Edward R. Curtis, Esquire Bruce Botsford, Esquire 1828 S.E. 1st Avenue Fort Lauderdale, Florida 33316 Suzanne H. Schmith Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Silvia Morell Alderman, Esquire Suite 1200 106 East College Avenue Tallahassee, Florida 32301 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue Whether respondent committed those acts set forth in the amended Administrative Complaint, and if so, whether respondent's license should be revoked or suspended, or whether some other penalty should be imposed.
Findings Of Fact At all times material to this matter, the respondent was a registered pool contractor, having been issued license no. RP 0021612, by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Respondent was first registered with the Construction Industry Licensing Board in 1974. On May 2, 1984, respondent entered into a contract with Yhony Puente de la Vega for the repair of the swimming pool at the Siesta Motel located in Putnam County, Florida. The contract provided that the respondent would make certain repairs to the pool for the total price of $7,000. The contract further provided for a down payment of $2,300, which respondent received. Prior to entering into the contract, respondent had examined the pool to determine the repair work that needed to be done. However, respondent was unaware that the Department of Health and Rehabilitative Services (HRS) required certain plans to be submitted and approved before the pool could pass inspection and become operational. Subsequent to entering into the contract, respondent learned of the HRS requirements and hired an engineer to prepare and submit the necessary plans for approval. Although respondent had performed repair work on other motel pools, he had never before been required to submit plans for approval to HRS. At some point after entering into the contract, but before he began any work, respondent was informed that he was not properly licensed to do the repair work on the pool. Due to the problem with the licensing and the HRS requirements that respondent had not anticipated, respondent contacted his son, a certified pool contractor, and asked him to take over the job. Respondent's son, Alan K. Payne, Jr., agreed to do the work. From the evidence presented, it is unclear exactly when Alan R. Payne, Jr., took over the project. Alan K. Payne, Jr., testified that he had taken over the job by the time that HRS approved the plans for the pool on August 29, 1984. However, a proposed contract for the pool repairs dated March 1, 1985, and signed by Alan K. Payne, Jr., and a settlement stipulation dated June 6, 1985, whereby the parties agreed that Alan R. Payne, Jr., would complete the job according to the original contract, indicate that the motel owners and Alan R. Payne, Jr., did not reach an agreement on the terms of the contract until June of 1985.1 Respondent's son obtained the permit for the pool repair work from the Putnam County Building Department on June 13, 1985, and he subsequently completed the repair work. At all times material hereto, respondent was a state registered pool contractor and was aware that such a license did not allow him to contract throughout the state, but only in those counties where he had met all local licensing requirements. Respondent had his wife call the Putnam County Building Department to determine if he could perform the pool work. He had relied on his wife to do this on other occasions. His wife informed him that it was "legal" for him to do the repair work. Respondent had never before performed any work in Putnam County. When a person contacts the Putnam County Building Department to determine whether he can contract and obtain permits for work in Putnam County, he has to indicate whether he is "certified" or "registered." If the word "registered" is used, the person is directed to talk with the office manager, who advises the person as to the procedure for obtaining local competency. If the word "certified" is used, the person is informed that he can enter into contracts and obtain permits for work in Putnam County. There was no competent evidence presented as to what respondent's wife advised the Building Department, but she would not have been told that a state registered contractor could perform pool work or obtain permits in Putnam County. Putnam County requires a registered contractor to have a certificate of competency or local competency in order for the contractor to perform contracting work and obtain permits to do the work in the county. Without a certificate issued by Putnam County, a registered contractor can neither perform work in Putnam County nor obtain permits for work in Putnam County. A contractor who is state certified can perform work and obtain permits for work in Putnam County without obtaining local competency. The contractor would need only to provide a copy of his state certified license to the Putnam County Building Department. At all times material hereto, respondent did not have local competency in Putnam County or a state certified license. Respondent was authorized to perform work in Volusia County. His application for registration lists only Volusia County.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding respondent guilty of violating Section 489.129(1)(j), by his failure to comply with Section 489.117(2), and not guilty of violating Section 489.129(1)(d), Florida Statutes. It is further -recommended that respondent be fined $250 and placed on probation for a period of one (1) year under such terms and conditions as the Construction Industry Licensing Board considers appropriate. DONE and ENTERED this 11th day of September, 1986, in Tallahassee, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1986.
The Issue This is a bid protest proceeding arising from the School Board's notice that it intends to reject all bids. The Petitioner, one of the bidders on the subject project, asserts that rejection of all bids would be illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact 1. In their Joint Pre-Hearing Stipulation the parties stipulated to the following facts, which they agreed could be taken as established without the need for further proof.? School Board Policies and Approved Design-Build Evaluation Procedures 1. A true and correct copy of School Board Policy 3320 concerning "Purchasing Policies" is submitted as Joint Exhibit 1. School Board Policy 3320 was adopted by SBBC's [the School Board of Broward County] governing board in the exercise of its rule-making authority and was last revised on September 7, 1993. 2. A true and correct copy of School Board Policy 7009 concerning Award of Design-Build Contracts is submitted as Joint Exhibit 2. School Board Policy 7009 was adopted by SBBC's governing board in the exercise of its rule-making authority on January 17, 1995. 3. A copy of SBBC's typical Document 00100 "Instructions - Request for Proposal" is submitted as Joint Exhibit 3. Invitation to Bid No. 21-174T 4. On or about September 15, 2000, SBBC advertised Invitation to Bid No. 21-174T ("IM") entitled "Concession Building (Design-Build) for Coral Springs High School." A copy of the ITB is submitted as Joint Exhibit 4. 5. Invitation to Bid No. 21-174T was not submitted by district staff to SBBC's governing board for approval prior to its issuance to the public. 6. SBBC had an open contract with Williams Engineering. Joint Exhibit 33. Williams was authorized by an SBBC project manager to proceed under its open contract with schematic design, design development, construction documents, construction contract administration and warranty services under the open contract for "Project 1151-99-03" which had the Project Title "Track Drainage, Grading, Concession Building Water, Sewer & Walkways, Driveway Relocation; Campus Site Master plan." Said project was to occur at Coral Springs High School- Joint Exhibit 32. 7. %ITB No. 21-174T contained the design criteria package prepared by Williams Engineering. The design criteria package for the subject project was not submitted to or approved by SBBC's governing board prior to issuance of ITB No. 21-174T. 8. No request for proposals (RFP) was issued by SBBC to solicit competitive proposals from qualified design-build firms for the design criteria package for the subject project. Instead, SBBC issued an ITB containing the design criteria package. The SBBC did not revise the ITB by addendum to become a RFP at any time prior to the opening of bids for this procurement. 9. The SBBC's governing board never approved the criteria, procedures and standards for the evaluation of ITB No. 21- 1741. 10. ITB 21-1741 did not include provisions for award that would require the Superintendent of Schools to recommend to SBBC's governing board not less than three design-build firms as the most qualified for this procurement. 11. ITB 21-1741 did not include provisions for award under which SBBC's governing board would interview the three finalists for the project and to award a contract for the project to one or more of said firms. Addenda 1, 2 and 3 12. Three addenda were issued by SBBC regarding Bid 21-1741. Addendum No. 2 was labeled as "RFP 21-1741." Addendum No. 3 was issued on September 28, 2000 and changed the reference in Addendum No. 2 from "RFP 21-1741" to that of "Bid 21-1741" and changed the bid posting date to October 11, 2000 at 3:00 pm. Joint Exhibits 5, 6 and 7. Post-Submittal Activities. 13. Pursuant to the ITB, SBBC opened bids for Bid 21-1741 on October 10, 2000. Joint Exhibit 4 at Page 1. Responses to the ITB were submitted by Petitioner BT Builders, Inc.; C.G.R Construction Company, Incorporated; and R.L. LaRoche, Inc. Joint Exhibits 8, 9 and 10. 14. The bid proposal submitted by C.G.R Construction Company, Inc., at the bid opening consisted of a cost proposal and was not accompanied by any drawings or specifications. Drawings for the project were presented to SBBC by C.G.R Construction Company, Inc., during SBBC's Meeting of November 9, 2000. 15. On or about October 11, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to Petitioner BT Builders, Inc. The posted recommendation also recommended rejection of the bid of C.G.R. Construction Company, Incorporated for a failure to submit a package comprised of documents (including drawings, specification materials, narratives and other materials) responding to the Design Criteria Package. Joint Exhibit 11. 16. At the time of the October. 11, 2000 posting, the proposals submitted under Bid 21-174T had not been submitted to SBBC's governing board for evaluation or to SBBC's Consultant's Review Committee ("CRC'). Any review of the proposals made at this point was conducted by staff within SBBC's Facilities Department. 17. On or about October 13, 2000, C.G.R. Construction Company, Incorporated notified SBBC that the procedures being followed in this procurement were not in compliance with Section 287.055(10), Florida Statutes. This notification was presented to SBBC by C.G.R. in a document that characterized itself as "a formal written protest." Joint Exhibit 12. 18. On or about October 16, 2000, SBBC’'s Purchasing Department notified the proposers that the Recommendation/Tabulation that had been posted on October 11, 2000 had been withdrawn. Proposers were notified that a new date for posting a recommendation would be November 10, 2000 at 3:00 pm. Joint Exhibit 14. A subsequent notice informed the proposers that the new date for posting a recommendation would be November 13, 2000 at 3:00 pm. Joint Exhibit 15. 19. On or about October 19, 2000, SBBC's Facilities and Construction Management Department ("the Department") notified proposers under Bid No. 21-174T that SBBC's Consultant's Review Committee ("CRC') would consider the proposals for short-listing on November 2, 2000 at 3:00 pm. Proposers were further notified that, if a firm was short-listed by the CRC, the firm would make a presentation to SBBC's governing board on November 9, 2000 and that SBBC's governing board would make the final selection of proposers at that meeting. Joint Exhibit 13. 20. On November 2, 2000, SBBC's Consultant's Review Committee ("CRC") met and short-listed the proposals submitted for Bid No. 21-1-74T. A binder of materials regarding the project was delivered to SBBC staff by C.G.R Construction Company, Inc. on November 2, 2000, but was not distributed by SBBC staff to the CRC. The CRC short-listed all three proposers for consideration by SBBC's governing board. 21. The Department notified the proposers that interviews of the short-listed proposers would be conducted by its governing board on November 9, 2000. Each proposer was able to be present for each of the presentations made before SBBC's governing board. Joint Exhibit 16. 22. At a public meeting conducted on November 9, 2000, the governing body of SBBC considered the proposals submitted in response to Bid No. 21-174T and selected C.G.R. Construction Co., Inc., for award of a design-build contract. Joint Exhibits 17, 18 and 19. 23. On November 13, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to C.G.R. Construction Co., Inc. Joint Exhibit 20. 24. On November 13, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department a notice of intent to protest regarding the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 21. 25. On or about November 20, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department its formal written protest of the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 22. 26. On December 4, 2000, a Committee designated by SBBC conducted a meeting with the Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes and School Board Policy 3320. During this meeting, it was argued by SBBC's staff that the terms and conditions of Bid No. 21-174T were not in material compliance with the procedures described in Section 287.055(10), Florida Statutes, and Rule 4.1(7) of the State Regulations for Educational Facilities ("SREF") or with School Board Policy 7009 ("Awarding of Design-Build Contracts"). The Committee voted that the recommendation to award a contract to C.G.R. Construction Co., Inc., should be rescinded and that a new recommendation should be posted for the rejection of all bids. Joint Exhibit 23. 27. On or about December 12, 2000, SBBC posted a Revised Recommendation/Tabulation that "the award to C.G.R. Construction be rescinded, and that all bids received be rejected, in accordance with School Board policy and procedures." Joint Exhibit 28. 28. SBBC notified BT Builders, Inc., that the school district considered the formal written pretest filed on or about November 20, 2000 to have been rendered moot by the Revised Recommendation/Tabulation which rescinded the former intended action and stated that a recommendation for rejection of all bids would be made. Joint Exhibit 24. 29. On December 15, 2000, BT Builders, Inc. filed with SBBC's Purchasing Department its notice of intent to protest regarding the proposed rejection of all bids. BT Builders also continued to protest the prior recommendation to award to C.G.R. Construction Co., Inc. Joint Exhibit 29. 30. On January 2, 2001, BT Builders, Inc. filed with SBBC's Purchasing Department its formal written protest regarding the proposed rejection of all bids. The formal written protest also continued to protest the earlier recommendation to award to C.G.R. Construction, Co., Inc. Joint Exhibit 30. Due to the closure of the school system for winter holiday recess, the filing of the formal written protest on January 2, 2001, was timely and occurred on the first business day following winter holiday recess. 31. SBBC scheduled a meeting with BT Builders, Inc., for January 12, 2001 to provide an opportunity to resolve the protest by mutual agreement in accordance with School Board Policy 3320 and Section 120.57(3) (d), Florida Statutes. That meeting was cancelled upon notification from BT Builders' attorneys that the protest was withdrawn. BT Builders subsequently informed SBBC that their attorneys had not been authorized to withdraw the protest or cancel the meeting. A new meeting date was then scheduled by SBBC. 32. On January 17, 2001, SBBC conducted the rescheduled meeting with Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes, and School Board Policy 3320. During this meeting, the parties were unable to resolve the protest by mutual agreement. Joint Exhibit 31. 33. On January 22, 2001, BT Builders, Inc. requested the referral of its formal written protest to the Florida Division of Administrative Hearings. 34. SBBC is proceeding to build the improvements that were the subject of this procurement through the use of its own personnel instead of seeking construction services from an outside vendor.
Conclusions For Petitioner: Thomas J. Ricci, Vice-President BT Builders, Inc. 1773 Blount Road, Suite No. 303 Pompano Beach, Florida 33069 For Respondent: Robert Paul Vignola, Esquire Broward County School Board K.C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case dismissing the petition and denying all relief requested by the Petitioner. 18 DONE AND ENTERED this 24 “aay of June, 2001, in Tallahassee, Leon County, Florida. co yy Lllidtt ; Sue MICHAEL M. PARRISH 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 2 q day of June, 2001.
The Issue Appellant raises two issues on appeal: (1) whether the Board misconstrued a provision in the Special Area Plan for College Park (Special Area Plan) of the Urban Mixed-Use District 1 (UMU-1) zoning classification, which prescribes the allowable height for Type I buildings within that district; and (2) whether there is competent substantial evidence to support the Board's decision that the development and use of the subject property is compatible with the use and structures on the nearby property.
The Issue Whether Martin County Comprehensive Plan Amendments Nos. 01-11 and 01-12, pertaining to school siting and public facilities, adopted by Martin County in Ordinance No. 606, on December 11, 2001, are "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes. (All citations to Florida Statutes are to the 2001 version unless otherwise stated.)
Findings Of Fact 1000 Friends of Florida, Inc., is a Florida not-for- profit corporation. Its purposes include monitoring and ensuring the proper implementation of the State's growth management laws. 1000 Friends has approximately 644 members in Martin County, which constitute a substantial percentage of its total membership. 1000 Friends' corporate purposes include the representation of its members in administrative proceedings involving the Growth Management Act, Chapter 163, Part II, Florida Statutes. The type of relief sought by 1000 Friends in this case is the type of relief 1000 Friends is authorized to seek on behalf of its members. 1000 Friends made oral and written comments to Martin County during the time period from the transmittal to the adoption of the Plan Amendments. 1000 Friends' employees have attended and participated in various development and planning activities in Martin County over the years. 1000 Friends has published articles in the local newspaper on planning issues. 1000 Friends was a party in the administrative proceeding over the adoption of the 1990 Martin County Comprehensive Plan, and was involved in the development of the stipulated settlement agreement adopted to settle that proceeding. Lloyd Brumfield owns property and resides in Martin County, and submitted oral and written comments to Martin County during the review and adoption hearings on the Plan Amendments. Martin County Conservation Alliance, Inc. is a not-for- profit Florida corporation and has approximately 100 members who live in Martin County, including Donna Melzer. Ms. Melzer resides with her husband in Palm City, Martin County, Florida. MCCA and Ms. Melzer submitted oral or written comments to Martin County during the review and adoption hearings on the Plan Amendments. Martin County is a political subdivision of the State of Florida and is the local government that enacted the Plan Amendments under review. It is a coastal county located in the southeastern part of the State, on the Atlantic Ocean between Palm Beach County to the south, St. Lucie County to the north, and Okeechobee County, and Lake Okeechobee to the west. Martin County contains four incorporated municipalities within its boundaries: the City of Stuart (the county seat), the Town of Sewall's Point, the Town of Jupiter Island, and the Town of Ocean Breeze Park. The overall size of the entire county is approximately 538 square miles, or 344,357 acres, with agricultural uses on approximately 72 percent of the land, residential uses on approximately 16 percent of the land, public conservation uses on approximately 6.5 percent of the land, and other uses (e.g., commercial, industrial, and institutional) on the remaining 5.5 percent of the land. The current population of Martin County is approximately 125,300 residents. The Department is the state land planning agency, and is responsible for reviewing and approving comprehensive plan amendments by local governments. The School Board is responsible for providing educational facilities and programs to the residents of Martin County pursuant to the Florida Constitution and Florida Statutes. The City of Stuart is an incorporated municipality within Martin County. All of the parties have standing in this proceeding. The Plan Amendment Adoption Process On or about July 10, 2001, the Planning and Development Services Department of Martin County, by and through its director, Nicki van Vonno, requested the Board of County Commissioners of Martin County (Commission) to consider transmitting the second set of proposed 2000-2001 Comprehensive Plan Amendments to the Department. The proposed list included No. 01-9 (Mixed Uses), No. 01-11 (School Siting), and No. 01-12 (Public Facilities). Among other documents, three separate memoranda pertaining to each proposed plan amendment accompanied this request. These materials were submitted to the Land Planning Agency (LPA) for consideration during a public hearing held on July 12, 2001, and also for the Commission meeting held on August 7, 2001. Pertinent here, two separate memoranda pertained to School Siting and Public Facilities and contained background information, applicable statutes, proposed plan amendments, and with respect to school siting, a draft interlocal agreement. Because the proposed Plan Amendments changed substantially after and in response to the Department's Objections, Recommendations and Comments (ORC) Report issued on November 2, 2001, the data and analysis compiled and performed by Martin County planning staff (as of August 2001) is not included here, but is discussed hereafter where relevant to the discussion of the Plan Amendments ultimately approved by Martin County and which were found to be "in compliance" by the Department. On July 12, 2001, the LPA unanimously recommended approval of the three proposed plan amendments. On August 7, 2001, the Commission unanimously approved the three proposed Plan Amendments. Comments from the public were received, including but not limited to comments offered by Lisa Interlandi (co-counsel for Melzer and MCCA in this proceeding), and Ms. Melzer. Written comments were also submitted by Richard J. Grosso, General Counsel, Environmental & Land Use Law Center, Inc. (also appearing as co-counsel for Melzer and MCCA in this proceeding). Other written comments were provided by, among other persons, William Thornton and Lloyd Brumfield. The Commission voted to transmit these Plan Amendments to the Department for consideration. On or about August 20, 2001, the Department received the proposed Plan Amendments. Copies of the proposed Plan Amendments were distributed to appropriate state, regional, and local agencies for their review and comments. By letter dated November 2, 2001, the Department submitted its ORC with external agency comments to Martin County. In part, this letter authored by Charles Gauthier, A.I.C.P., Chief, Bureau of Local Planning, stated in part: The Department supports the growth management objectives of the County in limiting the location of schools and public facilities to the urban service districts. We also recognize the need to include additional siting flexibility for schools and public facilities due to the constraints that exist within the urban service districts. However, we are concerned that the proposed siting policies waive all requirements of the plan without limitation rather than incorporating additional flexibility for siting. Our objections and recommendations are intended to assist the County in its efforts to site required facilities, while continuing to ensure the plan is fully implemented and habitats are afforded appropriate protection. We are available to work with your staff to develop strategies to meet all of these important growth management objectives. The Department expressed two objections relevant here. The first deals with the School Siting Plan Amendment, and proposed changes to the Plan's Future Land Use Element (FLUE) and the Intergovernmental Coordination Element (ICE), and in particular ICE Policy 3-2.A.10.a, which as proposed at the time, stated: Policy: In accordance with Sections 163.3177(6)(h)2 and 235.193, F.S., by 2001, Martin County, the City of Stuart, and the Martin County School Board shall adopt and maintain an inter-local agreement detailing joint processes for collaborative planning and decision making, population projections and the siting and development of public schools. At a minimum, the interlocal agreement shall provide a standardized process for determining the sites available to meet the needs identified by the School Board and for objectively ranking potential sites as to their suitability, considering at a minimum: Federal and state requirements for school siting; Proximity to existing or planned population centers; Availability of public facilities for transportation, including bicycle and pedestrian facilities, stormwater drainage, potable water and wastewater facilities; Opportunities for locating near complementary uses; and Negative impacts to native upland and wetland habitats. The development of school sites located in accordance with Policy 4-4.G.1.m., that is, on sites which lie within a municipality or within the Primary or Secondary Urban Service District, and which sites are selected pursuant to the terms of an interlocal agreement adopted in accordance with this policy, shall be deemed consistent with the remaining provisions of this Comprehensive Growth Management Plan. The Department provided the following objection and recommendation regarding this policy amendment: 1. ORC Objection: Proposed ICE Policy 3- 2.A.10.a is vague and over broad in terms of defining how consistency will be addressed in siting schools. For instance, it is not clear if "deemed consistent" waives procedural requirements such as obtaining a permit, waives all policies which pose any siting constraints, or waives just those provisions which might preclude siting a school on a specific property. The vague language does not provide sufficient guidance to define how consistency will be achieved in siting schools. The policy does not set forth a process for addressing and resolving potential conflicts between policies in a manner that ensures the intent of the plan is achieved to the maximum extent possible and that priority is given to specific requirements of the plan such as habitat protection. The policy does not provide sufficient guidance to prioritize siting based on the functional characteristics of resources, such as wetlands, and does not provide guidance on weighing and evaluating competing public objectives. Adequate data and analysis has not been presented to demonstrate which existing plan provisions create siting conflicts and the extent to which such policies must be relaxed or modified in order to overcome siting conflicts as necessary to meet projected school needs. Also, the policy does not include language to encourage the collocation of schools with other public facilities. [Section 163, Part II., F.S.,and Rule 9J-5.005(2) and (5), and Rule 9J- 5, F.A.C.] Recommendation: Provide additional data and analysis that identifies the specific policies which create siting problems and address how such policies could be refined to specifically provide greater flexibility for school siting. Revise the proposed policy to clarify how consistency determinations will be made in regard to those policies that result in siting constraints. For example, rather than stating by policy that school siting conducted pursuant to the interlocal agreement shall be deemed consistent with all plan provisions, the policy should provide guidance on how specific policies will be applied in siting schools to allow additional flexibility, while ensuring that the intent of the policy is implemented to the maximum extent practicable. Such a policy could specifically require that the siting process include an alternatives analysis and a finding of necessity which demonstrates that the proposed site is necessary to meet projected needs, that alternative sites have been explored and deemed impracticality [sic] and that the proposed site minimizes the extent of impacts in comparison to other sites. The policy should provide guidance for evaluating and comparing sites based on priorities for resolving conflicts between policies which may potentially create conflicts in siting schools. The policy should also establish criteria for evaluating alternative sites based on the functional characteristics of habitats, such as wetlands, so that higher quality habitats are given more weight and afforded greater protection in the siting process. (Emphasis included in original.) The Department also provided an objection and a recommendation with respect to proposed changes to the Capital Improvements, FLUE, Coastal Management, Conservation and Open Space Elements for the proposed Public Facilities Plan Amendment. The Department's objection and recommendation follows: B. CPA #01-12 (BCC): Changes to the Capital Improvements, the Future Land Use, Coastal Management, Conservation and Open Space Elements-The County proposes two exemptions to waive provisions of the plan. One set of amendments allows specific wetland and upland requirements to be waived for stormwater treatment projects and facilities as part of the Comprehensive Everglades Restoration Plan (CERP). These waivers are appropriate when such lands are necessary to ensure the successful restoration of the everglades. No objection is raised regarding these policies. 2. ORC Objection: Proposed Policies 14- 4.A.4.c. and 14-4.A.4.d.[1]allow the waiver of all goals, objectives and policies of the comprehensive plan as may be necessary to site public facilities in the urban service districts. The proposed amendments are over-broad and do not ensure adequate implementation of the comprehensive plan in siting public facilities. The proposed policies do not include sufficient guidelines for addressing and resolving potential conflicts between policies in a manner that ensures the intent of the plan is achieved to the maximum extent possible and that priority is given to specific requirements of the plan such as habitat protection. The policies do not set forth sufficient guidelines to develop the project impact analysis in a manner that ensures siting alternatives will be evaluated, priorities will be established, and potential impacts minimized and mitigated. The policies do not include criteria for evaluating alternatives based on the functional characteristics of resources, such as wetlands, and does [sic] not provide guidance on weighing and evaluating competing pubic objectives. Adequate data and analysis has [sic] not been presented to demonstrate which existing plan provisions create siting conflicts and the extent to which such policies must be relaxed or modified in order to overcome siting conflicts as necessary to provide needed public facilities. [Section 163, Part II, F.S., and Rule 9J-5.005(2) and (5), and Rule 9J-5, F.A.C.] * * * Recommendation: Provide additional data and analysis that identifies the specific policies which create siting problems and address how such policies could be refined to specifically provide greater flexibility for siting necessary public facilities. Rather than waiving requirements of the plan, amend the plan to provide more specific strategies for siting public facilities in a manner that minimizes impacts. For example, revise the policies to provide additional guidance on how the project impact analysis process will work by specifying minimum requirements should be addressed as part of the project impact analysis. The policy could specify that the siting process include an alternatives analysis and a finding of necessity which demonstrates that the proposed site is necessary to meet health, safety and welfare needs, that alternative sites have been explored and deemed impracticality [sic] and that the proposed site minimizes the extent of impacts in comparison to other sites. The policy should provide guidance for evaluating and comparing sites based on priorities for resolving conflicts between policies which may potentially create conflicts in siting public facilities. The policy should also establish criteria for evaluating alternative sites based on the functional characteristics of habitats, such as wetlands, so that higher quality habitats are given more weight and afforded greater protection in the siting process. (Emphasis in original.) Staff of the Treasure Coast Regional Planning Council (Council) issued a Memorandum of October 19, 2001, (included with the ORC) which evaluated the Plan Amendments. The report was approved by the Council. The Council did not object to the Plan Amendments, but offered "comments" regarding the Public Facilities Plan Amendment.2 In general, the Council felt that this Plan Amendment "would allow new public facilities to be developed without protecting wetlands." The Council noted that this Plan Amendment was inconsistent with the Council's Strategic Regional Policy Plan (SRPP), and in particular Policies 6.6.1.1 and 6.6.1.2, because the Plan Amendment, "as written would also allow waivers to any requirement of the Comprehensive Plan," and "[a] waiver without limits or instructions for its use is not good public policy." Further, the Council noted: "If the County proceeds with adoption of policies to allow these waivers, Council recommends the County specifically identify the criteria under which any waiver of the Comprehensive Growth Management Plan (CGMP) goals, objectives and policies for public projects is based. These criteria should be clearly and specifically stated in the CGMP so the public can be assured the criteria are being met and that any waiver allowed by the County is for the public good. Also, specific compensation/mitigation criteria should be established to offset loss of wetland habitat; and limit and mitigate for any other impacts granting the waiver may have on County levels of service and the natural and built environment. Council recommends that the County utilize waivers only after all other possible alternatives are fully examined." The Council also recommended that a proposed amendment pertaining to "waivers and exceptions" for "wetland areas" appearing in three elements (for Public Facilities) "not be adopted until precise guidelines are developed that specify the conditions under which this waiver may be applied."3 The Department of Transportation (DOT) objected to two provisions of the Public Facilities and School Siting Plan Amendments regarding existing concurrency requirements and potential level of service impacts of the proposed waiver on the transportation system. DOT also questioned "whether concurrency provisions of the [Plan] will apply to school construction once site selection is completed." The Department of Environmental Protection offered no comments to the Plan Amendments submitted for the Department's ORC review. The Department of State did not have any objections or negative comments. Martin County planning staff compiled a response to the Department's ORC, which set forth the Department's Objections and Recommendations, and to the Council's comments. On or about November 6, 2001, Martin County planning staff prepared a summary of the preceding events, which was furnished to the Commission for consideration during the Commission's December 4, 2001, workshop. Revisions and/or additional language were drafted by staff in light of the ORC, including the Council's comments, and comments from the public. Previously, the Commission directed staff to develop the Public Project Impact Analysis, specified in proposed plan amendment Policy A.4.e. of the public projects text amendment, which was also considered during the workshop. County staff had been working with the Department and Council staff on addressing the comments and objections of these agencies. Representatives of the County and the School Board met with Department Secretary Steven Seibert to discuss the school siting text amendment which had been re-drafted, but not in the final form ultimately approved by Martin County. On December 11, 2001, revisions of the Plan Amendments were presented to the Commission for adoption during a public hearing. By letter of December 7, 2001, Secretary Seibert was advised of the Department's support for the School Siting and Public Facilities Plan Amendments. The Commission approved the revisions and the Plan Amendments were transmitted to the Department. On February 1, 2002, the Department completed its review of the Plan Amendments adopted by Ordinance No. 606 on December 11, 2001, and found the Plan Amendments "in compliance." The Department's Notice of Intent was published in the Jupiter Courier on February 4, 2002. Textural Plan Amendment 01-11 (School Siting) As approved by the Commission and found to be "in compliance" by the Department, the School Siting Plan Amendment amends the ICE and the FLUE of the Plan. With respect to the ICE, the School Siting Plan Amendment deletes Section 3-2.A., Objective 8, Policy d., creating a new Policy d. after the following existing (Objective) language: "On an ongoing basis Martin County shall coordinate its Comprehensive Growth Management Plan with the plans of the Martin County School Board, the City of Stuart. . .and the Counties of Palm Beach, St. Lucie and Okeechobee." New Policy d. provides: d. Policy: The County and the Martin County School Board shall coordinate a biennial review of the School Impact Fee Ordinance in order to ensure that new developments bears [sic] its proportionate share of the cost of providing new school facilities. The School Siting Plan Amendment also deletes Section 3.2.A, Objective 10, Policies a. and b. (of the ICE), and substitutes a new Policy a. after the following existing (Objective) language: "Martin County, the municipalities, and the Martin County School Board shall coordinate the planning, location, and review of proposed educational facilities site plans and offsite impacts." New Policy a. provides: Policy: In accordance with Sections 163.3177(6)(h)2 and 235.193. F.S., by 2001, Martin County, the City of Stuart, and the Martin County School Board shall adopt and maintain an interlocal agreement detailing joint processes for collaborative planning and decision making, population projections and the siting and development of public schools. Due to the unique locational requirements for public schools imposed by state and federal requirements and considering the overall benefits to the community of locating public schools within a municipality or within the Primary or Secondary Urban Service District, it may not be possible to achieve consistency with each and every policy of this plan in the same manner as other types of development. Therefore, in order to achieve the full public benefit of locating public schools within a municipality or within the Primary or Secondary Urban Service District, this policy provides a mechanism for balancing the Goals, Objectives and Policies of this Plan and shall be the sole means of determining consistency with this Plan for purposes of siting and constructing public schools. The interlocal agreement shall provide a standardized process for determining the sites available to meet the educational facility needs identified by the School Board and for objectively scoring and ranking potential sites as to their suitability. The scoring and ranking of the interlocal agreement shall favor sites which: Are consistent with federal and state guidelines for school siting; Are in close proximity to existing or planned population centers and student populations; Maximize the use of existing or planned capital facilities for transportation, including bicycle and pedestrian facilities, stormwater management, potable water and wastewater facilities and maintain adopted Levels of Service for mandatory public facilities to the maximum extent practicable; Are in close proximity to complementary uses, such as but not limited to public parks and libraries; and Avoid negative impacts to wetlands and upland habitats and where negative impacts cannot be avoided, sites for which permits can be obtained to allow minimization and mitigation of such impacts, in accordance with state and federal permitting requirements. The interlocal agreement shall include provisions for an alternatives analysis designed to demonstrate the extent to which each potential school site, relative to other potential sites, is necessary to meet projected needs of the population and maximizes the public benefit, as measured by the criteria set forth in paragraphs (1) and (5) above. A school site located in accordance with Policy 4-4.G.1.m., that is, on a site which lies within a municipality or within the Primary or Secondary Urban Service District, and which is selected pursuant to an interlocal agreement adopted in accordance with this policy, shall be deemed to be the most appropriate site available to satisfy the identified public education need while maintaining consistency with the Goals, Objectives and Policies of this Plan to the maximum extent practicable and the siting and construction of a public school on any such site shall be deemed consistent with this Plan. The School Siting Plan Amendment also deletes Section 4-4.G. (encouraging urban development in urban service areas), Objective 1, Policy m. of the FLUE, and adds a new Policy m. after the following existing (Objective) language: "Martin County shall concentrate higher densities and intensities of development within strategically located Primary Urban Service Districts. . . ." New Policy m. provides: m. Policy: Public schools shall be located only within the Primary Urban Service District (PUSD) or the Secondary Urban Service District (SUSD). Previously, Policy m. authorized public schools as an allowable use within the Primary Urban Service District, and further provided that "[p]ublic schools may be allowed in the Secondary Urban Service District based upon a demonstration of need." Is the School Siting Plan Amendment "in compliance?" In general, Petitioners contend that the School Siting Plan Amendment is not "in compliance" because it is vague and lacks meaningful, predictable standards; improperly defers decision-making with respect to the siting and construction of schools to the participants of an interlocal agreement and thereby eliminates public participation; is not supported by appropriate data and analysis; causes urban sprawl; improperly eliminates the requirement that schools comply with Level of Service (LOS) requirements; fails to protect natural resources; and allows incompatible land uses. The ICE requires Martin County, the municipalities, and the School "to coordinate the planning, location, and review of proposed educational facilities site plans and offsite impacts." To this end, the School Siting Plan Amendment amends the ICE of the Plan to require Martin County, the City of Stuart, and the School Board "to adopt and maintain an interlocal agreement detailing joint processes for collaborative planning and decision making, population projections and the siting and development of public schools." The siting (of suitable sites) of public schools has been a particular challenge to local governments and school districts for many years. This is so, notwithstanding the statutory authority to establish "joint processes for collaborative planning and decisionmaking [sic] on population projections and public school siting" and the authority to "establish by interlocal or other formal agreements executed by all affected entities" these joint processes consistent with their adopted ICEs pursuant to Section 163.3177(6)(h)2., Florida Statutes. Historically, there appears to have been little coordination between school planning and siting, and land use planning and regulation. County school district's have been responsible for the former and local governments for the latter. As Florida began to focus more and more on the importance of managing growth, it became obvious that school planning, siting, and construction had to be coordinated with overall growth management because schools usually draw development. School siting requires more than consistency with a comprehensive plan. It requires compliance with state and federal requirements which presents some unique and sometimes difficult problems. In order to address some of these problems, the Legislature enacted laws authorizing local governments to enter into local agreements with school districts to address the problem of school siting to ensure that the siting and construction of schools are done within the overall planning framework and overall local comprehensive plan. In 1999, the Stuart City Commission, the School Board, and the Commission held a joint meeting regarding proposed amendments to the Plan related to school siting. These entities created a Joint Task Force on School Siting (Task Force) which was responsible for drafting an interlocal agreement. Intensive meetings and workshops were conducted, in part, with the assistance of a consultant with extensive experience in conflict resolution as well as school siting. On May 1, 2000, the Task Force approved the overall format of an interlocal agreement for school siting based on the concept that potential school sites would be scored and ranked according to a policy matrix, such that only sites scoring near the top would be considered consistent with the comprehensive plans and land development regulations. While in general agreement with the overall format of the agreement, the Task Force directed staff to continue working on several outstanding details. The Martin County School District retained a knowledgeable professional to perform an analysis of all the property within the urban service areas and was advised that it would be very difficult, if not impossible, to site middle and high schools within the PUSD, which would meet all of its requirements and still meet all of the Plan policies. At the request of the School Board, the Technical Advisory Committee on School Siting convened in January 2001, to implement a proposed interlocal agreement by evaluating and recommending sites appropriate for the location of Martin County's planned "2003 High School." Membership on the Committee included representatives from Martin County, the School Board, and the City of Stuart. Twenty-two sites were examined and placed into three categories. In light of all federal, state, and local requirements, all of the sites were constrained in some respect. However, the Martin County School District's Five-Year Work Program indicates that only one new school (a high school) is programmed for this planning period. As of the final hearing, this high school is in the process of being sited. It appears this site was selected pursuant to the Interlocal Agreement adopted in August 2001. Assuming that the new high school is built, no new school sites are expected to be needed within the five-year time frame. However, some existing school(s) may be rebuilt, such as Port Salerno Elementary School. Martin County did not want to provide a blanket exception or waiver to the Plan policies, and did not believe it was necessary to do so. The Task Force ultimately concluded that, by recognizing the role that public schools play in community- building and incorporating those features into the policy matrix in an interlocal agreement, the public could potentially achieve an overall better result than would likely have been possible by relying solely on the existing regulatory scheme of the Plan and the Land Development Regulations (LDRs). By providing a scoring system which awards points based on positive characteristics, such as collocation with related public facilities, and subtracts points based on negative characteristics, such as environmental impacts, the interlocal agreement can be expected to help resolve what are sometimes competing public objectives. This process requires the School Board and the local entities to work together in the process of scoring and ranking the available sites. In this light, this process enables these entities to explore the true costs and benefits of school-siting decisions, not just from their own individual perspectives, but from the perspective of the broader community. As noted by planning staff, "the School District, which would normally tend to view the 'cost' of school siting as a function of the price of land, construction and long term operations, will be better able to recognize the costs (and benefits) with respect to other public services. Similarly, the local governments will be in a better position to recognize how their regulations affect the ability of the School District to provide the necessary educational facilities." Another approach would have been to specify which Plan policies are not applicable to school siting decisions. The approach taken by Martin County is not proscribed per se by any statute or rule. Comprehensive plans may contain different standards for different types of development, such as schools. The School Siting Plan Amendment sets out a separate method for determining consistency for public school site selection and development which is unique within the Martin County Plan and is not in conflict with any of its remaining provisions. The School Siting Plan Amendment addresses how locational, infrastructure, and natural resource protection policies are to be balanced with respect to the siting school facilities thereby maintaining internal consistency. Under the School Siting Plan Amendment, by its plain terms, Martin County, the City of Stuart, and the School Board are required to adopt and maintain an interlocal agreement which details joint processes for collaborative planning and decision- making, population projections, and the siting and development of public schools. This method is consistent with Sections 163.3177(6)(h)2. and 235.193(3), Florida Statutes. There is an existing Interlocal Agreement among Martin County, the School Board, and the City of Stuart which was furnished to the Department in August 2001, with the initial set of plan amendments. This agreement was the subject of a lengthy process of negotiation among Martin County, the City of Stuart, and the School Board and also developed by the appointed Task Force mentioned above. The Interlocal Agreement, however, is background information in support of the Plan Amendment, but is not specifically referenced in the School Siting Plan Amendment or in Ordinance No. 606, and does not implement the provisions of the Plan Amendment because the Agreement pre-dated the adoption of the Plan Amendment. (Mr. Metcalf of the Department viewed the Agreement "from the standpoint of how they set up their ranking system and scoring system and just as background information.") The Interlocal Agreement is not subject to review for compliance with the Plan Amendment or with the Plan in this proceeding. By construction of its terms, the School Siting Plan Amendment only applies to new school sites, not to the redevelopment or expansion of existing schools, which would have to be consistent with all of the provisions of the Plan. This Plan Amendment applies to the siting and construction of a public school. The interlocal agreement must provide "a standardized process for determining the sites available to meet the educational facility needs identified by the School and for objectively scoring and ranking potential sites as to their suitability." Every school site must be selected pursuant to an interlocal agreement adopted in accordance with Policy a. The scoring and ranking system in the interlocal agreement is required to favor sites which satisfy the five criteria set forth in the Plan Amendment. See Finding of Fact 34.4 (But, any adopted interlocal agreement is not required to be adopted as a plan amendment notwithstanding that it must be consistent with the Plan Amendment.) The Plan Amendment sets forth a process for balancing competing public interests, which are expressed as a policy. It is at least the subject of fair debate that the listed criteria provide a measurable, meaningful, and predictable framework. This means that there is sufficient direction in the Plan Amendment to be able to direct the development of LDRs and other programs in the Plan. In the ORC, the Department advised Martin County: "Adequate data and analysis has not been represented to demonstrate which plan provisions create siting conflicts and the extent to which such policies must be relaxed or modified in order to overcome siting conflicts as necessary to meet projected schools needs." Mr. Metcalf stated that there were no data and analysis to demonstrate which plan provisions create siting conflicts after the ORC was issued. However, in its response to the ORC, Joint Exhibit 6, page 3 of 12, Martin County advised, in part: "Considering all federal, state and local requirements, each of these sites [described in the Site Selection Recommendations report] is constrained in some respect." Nevertheless, Mr. Metcalf felt that this initial concern "was adequately mitigated by the fact that they now have language that talks about the idea of maximizing consistency with the comprehensive plan by scoring across those five criteria," including the requirement that schools be located within the urban service area which necessarily avoids an expansion of the urban boundary. The level of detail required for data and analysis to support a plan amendment varies. For example, consideration is given to the local government's existing and projected population and rate of population growth. See generally Rule 9J-5.002(2)(a)-(g), Florida Administrative Code. The level of detail is related to the context of the plan amendment. The data and analysis supporting the School Siting Plan Amendment meet the minimum standards. Here, the five criteria are mandatory in that each proposed site must satisfy each in order to have the potential for ultimate selection. However, while the issue was the subject of differing opinions,5 this language does not necessarily require that the highest-ranked site be selected, but the scoring and ranking system of the interlocal agreement must favor sites which meet all of the criteria. Otherwise, a site is not favored. Policy a. also requires the interlocal agreement to include an "alternatives analysis designed to demonstrate the extent to which each potential school site, relative to other potential sites, is necessary to meet the projected needs of the population and maximizes the public benefit, as measured by the" five criteria mentioned above. (Emphasis added.) Thus, each proposed site, having met the five criteria, may receive different scores in relation to each other as part of the alternatives analysis which requires, in part, consideration of how a site "maximizes the public benefit" as measured by all of the five criteria. The site selected would be among the best available sites. Stated otherwise, the School Siting Plan Amendment affords some flexibility. Doug Griffin, School Board attorney for the Martin County School District, explained: Well, wetlands infrastructure in each and every one of those things are very important. There is also the community issue, the school community issue where the best place is to pick a site. There may be two or three sites that are very close in terms of objective scores, but the community is absolutely supportive of a particular site and that's why we built this in to slow [sic] community input into where we locate our schools assuming that the sites are relatively equal in terms of their objective scores. All sites must be consistent with federal and state guidelines for school siting pursuant to criterion (1). All proposed school sites must be located within a municipality or within the Primary or Secondary Urban Service Districts. The Urban Service District consists of the Primary Urban Service District (PUSD) surrounded by the Secondary Urban Service District (SUSD) which is the transition between urban development and the rural agricultural areas of Martin County. (It appears that the SUSD is generally to the south and on the fringe of the urbanized area. Development is strongly discouraged in the rural and agricultural areas, with densities of one unit per 20 acres. The SUSD allows development of less than two units per acre, whereas the PUSD allows more than two units per acre.) Criteria (2)-(4) recognize, in part, the need to locate a school in proximity to student populations. It is not reasonable to expect the siting of a school in a remote area where there are no existing or planned population centers. Schools are influenced by development patterns. As a policy choice, it is preferable to site schools in the urban service district versus outside of the urban service district. Criterion (2) requires a prospective school site to be "in close proximity of existing or planned population centers and student populations." ("[I]n close proximity" means nearby.) The concept of sites being within close proximity (collocation) to planned population centers and complementary uses (criterion (4)) dovetails with the concept of limiting siting to the urban service district. These criteria also afford consideration of minimizing travel distances for students. See generally Section 163.3177(6)(a), Florida Statutes. ("The future land use element shall include criteria which encourage the location of schools proximate to urban residential areas to the extent possible and shall require that the local government seek to collocate public facilities, such as parks, libraries, and community centers, with schools to the extent possible.") Criterion (3) is a key component to combating urban sprawl by avoiding the need to extend public services out in a linear fashion that might tend to promote leapfrog development. The use of existing or planned public facilities is required to be maximized, which means that the public facilities are to be utilized to the fullest extent possible. See generally Rule 9J- 5.006(5)(g)6. and 7., Florida Administrative Code (failure to do so is an indicator of urban sprawl); see also Rule 9J- 5.011(2)(b)3., Florida Administrative Code (same). The School Siting Plan Amendment recognizes that if Martin County is to continue its efforts to discourage urban sprawl, it needs to find a way to accommodate public schools and other public facilities within the urban service districts. Otherwise, schools may be located in rural and agricultural areas, with development sure to follow. In order to achieve the overriding goal of containing sprawl, conflicting policies and other very important considerations, like wetlands protection, arise. These policy considerations need to be harmonized in a consistent manner with applicable statutes and rules. The location requirements in the School Siting Plan Amendment are consistent with, and further the Martin County goal of discouraging urban sprawl. As a separate requirement, criterion (3) also requires the maintenance of adopted LOS for mandatory public facilities6 to the "maximum extent possible." However, this provision does not authorize a waiver or exemption of LOS standards and concurrency requirements for public facilities including schools. Stated otherwise, a school site must meet the adopted LOS standard that has been established in the Martin County concurrency system. (For example, if the school district wants to build a school on a site, that school must be built in such a manner as to comply with traffic LOS standards.) Any interpretation to the contrary would lead to a finding of inconsistency with statutory requirements. Mr. Metcalf opined that maintaining adopted LOS for mandatory public facilities to the maximum extent practicable could result in a school site not meeting the LOS.7 Criterion (5) provides: "Avoid negative impacts to wetlands and upland habitats and where negative impacts cannot be avoided, sites for which permits can be obtained to allow minimization and mitigation of such impacts, in accordance with state and federal permitting requirements." By rule, local government comprehensive plans are required to have a conservation element which, among other things, requires policies which address the protection and conservation of wetlands. Rule 9J-5.013(3)(a), Florida Administrative Code. "Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands. . . . Land uses shall be distributed in a manner that minimizes the effect and impact on wetlands. The protection and conservation of wetlands by the direction of incompatible land uses away from wetlands shall occur in combination with other goals, objectives and policies in the comprehensive plan. Where incompatible land uses are allowed to occur, mitigation shall be considered as one means to compensate for loss of wetlands functions." Rule 9J- 5.013(3)(b), Florida Administrative Code. Wetlands provide important ecological functions, including but not limited to groundwater recharge. Martin County has a "mosaic of wetlands." Upland and wetland areas are interspersed throughout Martin County. Isolated wetlands, which are by definition not connected to streams, creeks, rivers, or other surface waters, are important for various species, such as wading birds, and other species and habitats. The Department determined that as of 1995, approximately 11 percent of the wetlands in Martin County were located within the urban service area. (Mr. Metcalf explained that this assessment was based on the "best available data from the national wetland inventory and soil-type analysis and the thematic mapping." He received the "digital coverages" for Martin County after the Department found the Plan Amendments "in compliance." The information was available to Martin County before the adoption of the Plan Amendments.) General institutional uses of land in Martin County when compared to other land uses on the Future Land Use Map (FLUM) comprised approximately four percent. (Typically, the range is between four and ten percent, with Martin County on the low side.) Approximately one-half of one percent of the wetlands in the urban service area may be impacted by the School Siting Plan Amendment. Mr. Metcalf estimated that approximately 200 acres of wetlands within the urban service district could be impacted by the Plan Amendment, based on the notion that all of those wetlands are available. He believed 200 acres was de minimis. Mr. Metcalf's assessments are reasonable. The School Siting Plan Amendment does not exempt school sites from natural resource protection because any selected school site must "[a]void negative impacts to wetlands" and "where negative impacts cannot be avoided," such impacts are required to be minimized and mitigated "in accordance with state and federal permitting requirements." See Section 163.3184(6)(c), Florida Statutes ("When a federal, state, or regional agency has implemented a permitting program, the state land planning agency shall not require a local government to duplicate or exceed that permitting program in its comprehensive plan or to implement such a permitting program in its land development regulations.") A school site is required to satisfy criterion (5) in order to be consistent with the Plan. Martin County has stringent wetlands protections in the Plan. To this end, Martin County decided to provide protections to wetlands in addition to those required by state and federal regulations, which is good from an ecological perspective. One witness thought this was a "very noble idea." However, the issue is whether the School Siting Plan Amendment, which provides a different set of wetlands protections, is not "in compliance." Stated otherwise, does the School Siting Plan Amendment provide adequate protections for wetlands within the statutory and rule framework which provides minimum standards which must be met? The persuasive evidence indicates that the federal and state regulatory programs which provide protection for wetlands can afford adequate protection as a matter of policy in light of the Plan Amendment. Whether mitigation will be adequate for a specific school site must await consideration of a specific development proposal. The comprehensive plan's conservation element is required to contain one or more objectives which, in part, "[c]onserve, appropriately use and protect minerals, soils and native vegetative communities, including forests" and "[c]onserve, appropriately use and protect fisheries, wildlife, wildlife habitat and marine habitat," addressing the requirements of Section 163.3177(6)(d), Florida Statutes. Rule 9J-5.013(2)(b)3. and 4., Florida Administrative Code. Conservation allows for the wise use of a resource and does not equate with preservation, which requires that resources be left intact. Pursuant to the Plan Amendment, school sites are required to avoid negative impacts to upland habitats. Section 9-4, Objective 7., Policy e. provides that "Martin County shall ensure that a minimum of 25 percent (by 2005) of the existing upland native habitat in the County [county-wide] will be preserved." (Increases in the percentages required (to 15 percent in 1995 from 10.9 percent, 20 percent in 2000) are staggered in the Plan and these "percentage goals will be attained for both endangered/rare and common uplands, to the maximum extent feasible." This 25 percent goal does not apply, by its terms, on a site-specific basis. The persuasive evidence indicates that criterion (5) will not affect the ability of Martin County to reach the target goal of preserving 25 percent upland native habitat by 2005. The persuasive evidence indicates that the School Siting Plan Amendment will not have a significant impact on the upland resources of Martin County. By its plain terms, a selected school site is not required to comply with other Plan provisions pertaining to upland habitat protections as long as it complies with the Plan Amendment. Also, the Plan Amendment does not require any minimum upland preservation to a selected school nor do federal and state regulations require mitigation of impacts to upland habitat, although there are federal laws which protect, e.g., endangered species. Nevertheless, to the extent there are no state and federal permitting requirements which authorize "minimization and mitigation" for upland habitats, potential school sites must avoid negative impacts to upland habitats. Potentially, the School Siting Plan Amendment (as well as the Public Facilities Plan Amendment) does not prohibit schools from being sited and constructed in the coastal high- hazard area of Martin County. This was of initial concern to Mr. Metcalf. It is the Department's practice to have local governments limit their infrastructure capacity to accommodate planned populations in the coastal high-hazard areas. Also, the Department felt that it was unlikely that Martin County would locate a school in a high-hazard area. The Department of Education has a guideline which indicates a preference to avoid coastal high-hazard areas and funding is limited at the federal level, including a required local match. (Martin County has Plan provisions which limit public expenditures in coastal high- hazard areas.) Flood plain standards are also required when schools are designed. If a school site is located on a site which lies within a municipality, or within the Primary or Secondary Urban Service District and selected pursuant to an interlocal agreement adopted in accordance with Policy a., the selected school site is "deemed to be the most appropriate site available. " Martin County explained the meaning of this provision in its response to the ORC, Joint Exhibit 6, pages 3 and 4 of 12, in part, as follows: Because the policy matrix[8]of the interlocal agreement exhaustively addresses all of the relevant policies of the Comprehensive Plan as well as state and federal requirements, including both procedural and substantive requirements, a site which scores near the top of all available sites to meet the identified need, is rightly 'deemed consistent' with the comprehensive plan. The phrase 'deemed consistent' was purposefully chosen because it serves to suspend those provisions of the Plan that, by operation of the interlocal agreement, would have been determined to be relatively unimportant or counterproductive in the context of public school development, while preserving the ability of the County to recommend compliance to the maximum extent practicable (as is provided for in the interlocal agreement). In other words, if the Plan were to exempt public schools from certain requirements (even under limited circumstances), the provision in the interlocal agreement requiring compliance to the maximum extent practicable would be rendered meaningless. In effect, the term 'deemed consistent' applies to those provisions of the Plan which might preclude the development of a school on a site which, by operation of the exhaustive standards of the interlocal agreement, has been determined to be the best available to serve the identified need. The interlocal agreement provides for a development review procedure that is appropriately tailored to fit the unique circumstances of public school development. All other state and federal permitting requirements remain in place. School Boards are already statutorily exempt from the need to obtain a local building permit (they are subject to the state building code and state oversight for building inspections). Regarding public participation, the public would have access to the decisions of the School Board's deliberations and decisions, which are made during public meetings. Similarly, Martin County is required to approve any development order for any site selected pursuant to the interlocal agreement adopted pursuant to the School Siting Plan Amendment. An action challenging the consistency of that decision with the requirements of the Plan Amendment could be brought pursuant to Section 163.3215, Florida Statutes. There were no issues raised in the proceeding that Petitioners and other members of the public did not have the opportunity to fully participate in the public process leading to the adoption of the Plan Amendment pertaining to school siting and other public facilities. Textural Plan Amendment No. 01-12 (Public Facilities) As approved by the Commission and found to be "in compliance" by the Department, the Public Facilities Plan Amendment adds language to the FLUE, Chapter 4; the Coastal Management Element, Chapter 8; the Conservation and Open Space Element, Chapter 9; and the Capital Improvements Element, Chapter 14. With respect to the FLUE, the Public Facilities Plan Amendment adds additional language under Section 4-5.B.(5)(h)1)- 3), (performance standards for wetlands areas). The performance standards in the FLUE, Subsection 4-5.B. provide, in part, that "Wetland Protection Requirements are detailed in the Conservation and Open Space Element," Chapter 9. The initial paragraph of Subsection 4-5.B.(5) deals with "Waivers and Exceptions" and currently provides: "All wetland alteration allowed under these exceptions shall be mitigated sufficiently to ensure that there is no net loss of functions or the spacial extent of wetlands in Martin County. No exceptions or waivers shall be granted to these standards except under the conditions described below." Currently, there are seven waivers and exceptions ((a)-(g)) and the Plan Amendment adds subsection (h) as follows: Stormwater treatment projects listed in the adopted Capital Improvements Plan, constructed by the Martin County Board of County Commissioners and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County subject to the following: The project shall be designed to cause the least amount of negative impact to wetlands. Waivers to existing requirements will be based on the principle of protecting the highest quality habitat and impacting the lowest quality habitat. Below are example habitats ranked from lowest to highest in quality and importance. Wetland buffers degraded with exotic vegetation. Wetland buffers, undisturbed Wetlands, isolated and degraded. Wetland systems, large and disturbed. Wetland systems, large and undisturbed. Wetland quality will be assessed using criteria established by the State of Florida. All projects shall follow all State and Federal regulations and permitting requirements. No such waiver to the Comprehensive Plan policies or the Land Development Regulations shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service.[9] The Public Facilities Plan Amendment also amends the portion of the Coastal Management Element under the "Coastal Natural Resources Goal," creating new Subsection 8-4.A.1.o., pertaining to waiver of upland protection requirements: The upland protection requirements detailed in Section 8-4.A.1.e through n. above may be waived by the Board of County Commissioners to the minimum extent necessary for stormwater treatment projects listed in the adopted Capital Improvements Plan, constructed by the Martin County Board of County Commissioners and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County. The project shall be designed to cause the least amount of negative impact to upland habitat. Waivers to existing requirements will be based on the principle of protecting the highest quality habitat and impacting the lowest quality habitat. Below are example habitats ranked from lowest to highest in quality and importance. Common upland habitat impacted by exotic vegetation. Common upland habitat, undisturbed. Special habitat (endangered, unique or rare upland habitat) shall be protected as specified in Sections 8-4.A.1.g. and 9-4.A.7.g. of the Comprehensive Plan; All projects shall follow all State and Federal regulations and permitting requirements. No such waiver to the Comprehensive Plan policies or the Land Development Regulations shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service. The Public Facilities Plan Amendment also amends the Conservation and Open Space Element and adds Subsection 9- 4.A.7.q. which provides: The upland protection requirements detailed in Section 9-4.A.7.e. through p. above may be waived by the Board of County Commissioners to the minimum extent necessary for stormwater treatment projects listed in the adopted Capital Improvements Plan, constructed by the Martin County Board of County Commissioners and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County. The project shall be designed to cause the least amount of negative impact to upland habitat. Waivers to existing requirements will be based on the principle of protecting the highest quality habitat and impacting the lowest quality habitat. Below are example habitats ranked from lowest to highest in quality and importance. Common upland habitat impacted by exotic vegetation. Common upland habitat, undisturbed. Special habitat (endangered, unique or rare upland habitat) shall be protected as specified in Sections 8-4.A.1.g. and 9-4.A.7.g. of the Comprehensive Plan; All projects shall follow all State and Federal regulations and permitting requirements. No such waiver to the Comprehensive Plan policies or the Land Development Regulations shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service. The Public Facilities Plan Amendment also amends Section 14-4.A.4.a. and b. of the Capital Improvements Element and also adds Objective 5. Objective 4 begins: "Manage the land development process to insure that all development receives public facility levels of service equal to, or greater than the standards adopted in Policies b., c. and d. of Objective 1." Amended Policies a. and b. to Objective 4 and new Objective 5 provide: Policy: All Category A and B public facility capital improvements shall be consistent with the goals, objectives and policies of the appropriate elements of this Comprehensive Plan or as specified in Objective 5. below. Policy: The County shall integrate its land use planning and decisions with its plans for public facility capital improvements by developing and adopting the programs listed in the "Implementation Programs" which are adopted as part of this Capital Improvements Element. The location of, and level of service provided by projects in the Schedule of Capital Improvements shall maintain adopted standards for levels of service for existing and future development in a manner and location consistent with the Future Land Use Element of this Comprehensive Plan. Individual land use decisions shall be consistent with Objective 5., below. OBJECTIVE Establish a procedure for balancing Comprehensive Growth Management Plan (Comprehensive Plan) goals, objectives, and policies for public facility capital improvement projects. Policy: When a public facility capital improvement is necessary, but the specific locational requirements or site development requirements for it make compliance with each and every policy of this Comprehensive Plan either physically impractical or financially unfeasible, the necessity for such a public facility capital improvement may require the location and construction of it even though a goal, objective or policy of this Comprehensive Plan would prohibit other types of development. The need for public facility capital improvements must be balanced with the benefits of other development requirements. Therefore, notwithstanding any other provisions of this Comprehensive Plan concerning concurrency with Level of Service requirements or adverse impacts to wetland or upland habitat, the Board of County [C]ommissioners may approve the location and construction of a public facility capital improvement upon their determination that the following met: The facility is listed in the adopted Capital Improvement Plan. The site for the proposed public facility capital improvement is within the Primary or Secondary Urban Services District. The facility site has been evaluated based on the following criteria: Project specific requirements including, but not limited to, location within facility service area, minimum facility size requirements, co-location with existing facilities, facility siting or design requirements, operational requirements and state or federal funding and regulatory requirements; Impact on environmental resources, and the ability to mitigate negative impacts; Future land use designation and zoning district; and Relative cost of alternative sites including the cost of mitigating or restoring natural resources. The design and layout of the proposed facility is the least disruptive to wetland and upland habitats. Where negative impacts to wetland and upland habitats cannot be avoided, such impacts shall be minimized and mitigated in accordance with state and federal permitting requirements. Impacts to lower quality habitat shall be considered before impacts to higher quality habitat. Below are example habitats ranked from lowest to highest in quality and importance. Common upland habitat impacted by exotic vegetation. Common upland habitat, undisturbed. Wetland buffers degraded with exotic vegetation. Wetland buffers, undisturbed. Wetlands, isolated and degraded. Wetland systems, large and disturbed. Wetland systems, large and undisturbed. Wetland quality will be assessed using criteria established by the State of Florida. The construction of the proposed facility shall not jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service. The design and construction of the proposed facilities complies with: All State and Federal regulations and permitting requirements; Comprehensive Plan policies contained in Section 8-4.A.8. regarding the protection of historical resources; Comprehensive Plan policies contained in Section 8-4.B.1., regarding the location of public facilities within the Coastal High Hazard Area of the County; Comprehensive Plan policies contained in Section 8- 4.A.1.g. and 9-4.A.7.g. of the Comprehensive Plan concerning the protection of endangered, unique or rare upland habitat; and (e) Compliance with Sections 8- 4.A.1.c. and 9-4.A.7.c. of the Comprehensive Plan concerning the protection of wetlands of special concern. The facility site has been selected as part of a review of alternative sites and, based on the criteria listed above, has been found to be the site most appropriate for the facility. In summary, the Public Facilities Plan Amendment has two parts. The first part amends the FLUE, the Coastal Management Element, and the Conservation and Open Space Element (in identical ways--see, e.g., Subsection (h)-wetlands and Subsections o. and q.-uplands) to provide for limited waivers and exceptions to the wetlands and uplands protection provisions of the Plan for stormwater treatment projects (STAs) constructed by the Martin County Board of County Commissioners and related facilities constructed as part of the Comprehensive Everglades Restoration Plan (CERP) in Martin County subject to several conditions. The second part of the Public Facilities Plan Amendment creates, as part of the CIE, Chapter 14, an alternative method of determining consistency and special planning criteria for the siting and development of certain types of public facilities which are located within the Urban Services District (USD), i.e., within the PUSD and SUSD. Is the Public Facilities Plan Amendment "in compliance?" Public facilities must be built to implement the Goals, Objectives, and Policies (GOPs) of the Plan and provide the necessary services to the citizens of Martin County. There is evidence that, at times, one or more of the specific requirements of the Plan have inhibited the placement of public facilities where the facility would best serve the overall pubic good. Martin County has grown by more than 25 percent in the last ten years, and much of that growth, especially within the last 20 years, has been concentrated inside the USD, thereby reducing the available vacant land for public facilities. In the main, this can be attributed to the application of Plan policies to manage growth. In Martin County, based on a draft Population Technical Bulletin-December 2001, population growth is projected to continue at a rate of approximately 2.56 percent per year with a total county weighted average population of 201,289 by the year 2015, compared to a total county weighted average population of 140,285 for the census population of April 1, 2000. (A weighted average is used to account for peak population which includes the permanent population plus a percent of the peak population.) It is likely that planning for the next 15 years will be more difficult because Martin County's Plan, by its terms, has kept growth inside the USD and has pushed growth onto the least environmentally sensitive sites and the previously impacted lands within the USD. The increase in population within the USD has also proportionally increased the need for public services and public facilities to support the services. Martin County planning staff has determined that many vacant parcels remaining within the USD have not been developed because of the existing environmental protections (for wetlands and uplands) in the Plan which limit development potential. Development of such vacant parcels for public facilities brings two or more public needs or interests into competition.10 One example given is: Should wetland impacts occur within the USD or should a fire station, a park or a library be built on the outer edges of the USD or outside the USD to avoid wetland impacts? As noted by Martin County planning staff, this is a policy decision not currently available to Martin County under the existing Plan. For example, Martin County considered, over a three- to-four-year period, where to locate a fire station to serve the urbanized, yet unincorporated, area of Palm City. Considerable public funds were expended in this endeavor, analyzing potential sites for compliance with Plan policies. Fourteen sites were examined. Martin County must find and fund a site large enough to not only build a new facility but plan for future growth, as the urban area of Palm City has outgrown the capacity of the existing fire station. But, it appears that most of the sites either exceeded the budgeted amount or involved significant wetlands or other environmental issues which made the fire station not feasible. Ultimately, a site was chosen for the fire station, but could not accommodate the battalion headquarters, physically connected to the fire station. The site was selected without knowing about two small wetlands on-site. It is uncertain whether the headquarters can be built on the site in an economically feasible or physically possible manner. There are noted problems with the expansion of existing libraries, e.g., the Palm City and Hobe Sound libraries, in light of Plan and LDR requirements. In an effort to determine which Martin County Plan policies were implicated by decisions relating to the siting of public facilities, a draft Public Facilities Impact Analysis matrix was created which listed over 100 Plan policies and other parameters that must be considered. (The matrix was furnished to the Department, but is not incorporated in any of the Plan Amendments. It serves as data and analysis. See Endnote 8.) This matrix also lists the existing Plan provisions that create siting conflicts. For example, two items on the matrix concerning the preservation of wetlands and upland habitat are in conflict with the need to construct a new fire station. Martin County facilities planners often must select sites that comply with each of the Plan requirements listed in the matrix in order to provide for needed facilities. While this can be done, it cannot always be done in locations that promote sustainable growth and deter sprawl. From a planning standpoint, it has become increasingly difficult for Martin County to adjust each of the 100 policies discussed in the matrix to prevent future conflicts. In recent years, more emphasis has been placed on not only development within the USD, but development inside Community Redevelopment Areas (CRA). This has led to the establishment of a CRA in each of the following unincorporated areas: Jensen Beach, Rio, Hobe Sound, and Port Salerno. Three additional areas of Martin County are each working toward establishing a CRA, including Palm City, Indiantown, and Golden Gate. The location of public facilities in urban centers and especially CRAs are important features in the health of a sustainable community. Locating new public facilities potentially within CRAs and the USD is a legitimate policy objective. Martin County decided to abandon the matrix approach and instead adopted a Plan Amendment which establishes a procedure for balancing the Plan GOPs for public facility capital improvement projects. It is difficult to forecast the exact location for public facilities, especially in the USD. Often, there are unique locational requirements for pubic facilities, although Ms. van Vonno was not aware of a problem for siting of projects currently included in the Capital Improvements Plan (CIP) and complying with native upland habitat protections. Objective 4., Policy a. of the Capital Improvements Element, is amended to require that all Category A and now B public facility capital improvements must be consistent with the GOPs of the appropriate elements or as specified in newly created Objective 5. Category A and B public facilities are defined in the Plan to include facilities owned and operated by Martin County. See Endnote 6. (Objective 4 begins: "Manage the land development process to insure that all development receives public facility levels of service equal to, or greater than the standards adopted in Policies b., c. and d. of Objective 1.") Policy b. of Objective 4 of the same element requires, in part, individual land use decisions to be consistent with Objective 5. Objective 5 is added to the Capital Improvements Element as guidance to Martin County when seeking to balance the need for public facilities inside the USD.11 Objective 5 provides an alternative review process for capital projects to ensure that Martin County can continue to meet its public facility requirements as a local government. As a threshold issue, in order to use this alternative process, there must be a determination that a public facility capital improvement is necessary and that the specific locational requirements or site development requirements make compliance with each and every policy in the Plan "physically impractical or financially unfeasible." (A necessary public facility is one that has been approved and funded by the Commission. It is the opinion of Martin County's current Assistant County Administrator and the former Capital Projects Director that the number of projects which are likely to undergo this alternative process is relatively small.) In order for a public facility capital improvement to be considered for selection or location and construction and development pursuant to Objective 5., the criteria included in Objective 5., Policy a.(1) through (8) must be met. They are mandatory criteria. These factors are not weighted, yet they are interrelated. The public facility must be listed in the adopted CIP and the site of the proposed public facility must be located within the PUSD and the SUSD. Stormwater and other related projects described, e.g., in Policy (h), if adopted in the CIP and other conditions precedent of Objective 5 are met, may be considered under Objective 5. Objective 5 does not directly affect the Commission's decisions regarding placing facilities in the CIP. Each year, Martin County prepares a five-year CIP that is financially feasible, which includes project information for all projects scheduled in the five-year planning period as well as an updated concurrency analysis for all public facilities except roads, sewer, and water, which are done separately and on a continuing basis. All of the rest are done on an annual update and published in the CIP. Capital facility needs are based on existing and projected population figures. A five-year window of information yields an analysis regarding the current LOS and a deficit or surplus for a particular capital facility. The CIP process begins in January and generally takes most of the year to complete. Planning staff start collecting detail sheets for each project. A draft CIP is prepared initially by staff and normally three public advertised workshops are held by the Commission. Affected municipalities and the public are invited to attend the workshops. This usually occurs in February or at the latest in mid-March. The Commission will have a straw vote on the CIP, usually by April. Once the annual budget process in completed, a final resolution of the CIP and budget is prepared, and both are considered and adopted at an advertised public hearing. Whether a specific project can meet the provisions of the Plan is not likely to be known at this time and not until preliminary design work is started. Data is compiled when site selection is made and due diligence done and when pre-design functions, e.g., soil borings, are performed. Public hearings are also required when the Commission considers the actual construction of public facilities. A concurrency determination is generally made when a development order is considered. A determination is also made when there is a proposal to change a land use, e.g., on a Plan FLUM. In short, public facilities are subject to concurrency. While the subject of some differing opinions, as in the case of the School Siting Plan Amendment, public facilities which may be considered under this Plan Amendment, are subject to concurrency/LOS requirements. The language in Objective 5.a., "notwithstanding any other provisions of this Comprehensive Plan concerning concurrency with [LOS] requirements or adverse impacts to wetland or upland habitat. . . the Board. . . may approve the location and construction of a public facility. . . upon their determination that the following [(1)-(8)] are met" when read in isolation could lead to a different interpretation. However, when read in conjunction with other provisions of the Plan Amendment, including, e.g., Objective 5.a.(3)(a), it is more reasonable to conclude that concurrency requirements are not waived. On the other hand, Objective 5 establishes a different process and manner for applying concurrency to public facilities. A different manner of complying with concurrency is reasonable because a public facility project must be listed in the adopted CIP, and the Plan Amendment requires a public facility to meet project specific requirements such as concurrency. Martin County provides for the impacts of its public facilities and other public facilities by reflecting the impacts in the next CIP concurrency analysis and generating a project, if necessary, to accommodate the impact. The proposed facility site must also be evaluated based on four separate criteria, (3)(a) through (d). Under criterion (3)(a), an evaluation of the facility in light of county and state LOS requirements are considered as part of the "project specific requirements." Under criterion (3)(b), the impact of the facility on environmental resources and the ability to mitigate negative impacts is evaluated. Criterion (3)(c) requires evaluation of the facility in light of the site(s) future land use designation and zoning district. This means that a site could not be selected if the type of facility is not authorized. The design and layout of the proposed facility must be the least disruptive to wetland and upland habitats. This requirement is to be read in tandem with criterion (3)(b) which requires evaluation of the facility(s) impact on environmental resources and the ability to mitigate negative impacts; criterion (3)(d) which requires evaluation of the relative cost of alternative sites including the cost of mitigating or restoring natural resources; and the requirement in criterion (5), that negative impacts to wetland and upland habitat (other than those habitats listed, and as construed by one expert witness as "ordinary habitat") be avoided, and if they cannot be avoided, "such impacts shall be minimized and mitigated in accordance with state and federal permitting requirements." Also, pursuant to criterion (5), "[i]mpacts to lower quality habitat shall be considered before impacts to higher quality habitat." This portion of Objective 5. establishes a continuum of examples of habitats ranked from lowest to highest in quality and importance, i.e., "[c]ommon upland habitat impacted by exotic vegetation" and "[w]etland systems, large and undisturbed" are the lowest and highest ranked habitats, respectively. "Wetland quality will be assessed using criteria established by the State of Florida." Mitigation is a widely accepted way of protecting wetlands, and is specifically recognized in Rule 9J-5.013(3)(b), Florida Administrative Code, as a method to compensate for loss of wetlands functions. (Compare with the prior discussion on the School Siting Plan Amendment.) With respect to upland habitats, other than those expressly excepted from the Plan Amendment, impacts to native upland habitats are to be avoided or minimized. Only common or ordinary upland habitat may be impacted. Pursuant to criterion (6), the construction of a proposed facility shall not jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service. In order to emphasize and clarify the intent of the Plan Amendment, specific provisions of the Plan cannot be waived, including those relating to the protection of historic resources; location of public facilities within the coastal high-hazard area of Martin County; protection of endangered, unique, or rare upland habitat; and protection of wetlands of special concern. The design and construction of any proposed public facility must comply with these requirements and all state and federal regulations and permitting requirements. (Public facilities are not exempt from the limitation on public expenditures in coastal high-hazard areas.) Finally, Objective 5 requires the selection of a public facility site which "has been found to be the site most appropriate for the facility" in light of the aforementioned criteria. As noted herein, the Public Facilities Plan Amendment also amends the FLUE, the Coastal Management Element, and the Conservation and Open Space Element (in identical ways--see, e.g., Subsection (h)-wetlands and Subsections o. and q.-uplands) to provide for limited waivers and exceptions to the wetlands and uplands protection provisions of the Plan for STAs constructed by the Martin County Board of County Commissioners and related facilities constructed as part of the CERP in Martin County, i.e., not exclusively within the PUSD or SUSD, subject to several conditions. Subsection (h) of the Plan Amendment authorizes these projects outside the USD. However, the Plan, through Section 4- 4.G.1.i., provides Policy i. which prioritizes the provision of public services and facilities and the allocation of public financial resources for public services and facilities in Martin County, first to the PUSD and then to the SUSD. Policy i. provides in part that "[p]ublic urban services which support or encourage urban development in other areas shall not be provided, except for those improvements necessary to remedy an existing deficiency." If Martin County is going to continue to discourage urban sprawl, public facilities should be accommodated within the USD, with the necessary balance of public interests and needs. Otherwise, they may need to be located in the rural and agricultural areas. Plans are now underway by Federal and State agencies to construct reservoirs and STAs in Martin County that would filter and pre-treat the water leaving Lake Okeechobee and entering the Atlantic Ocean, via the C-44 Canal, the St. Lucie River, and the Indian River Lagoon. The construction of STAs creates a potential conflict between two important goals: the public's interest in draining water out of Lake Okeechobee for flood control purposes and in controlling and pre-treating discharges before they enter the estuarine system, and the public's interest in protecting isolated freshwater wetlands and upland habitats within Martin County. As noted by Martin County planning staff: The construction of STAs creates a potential conflict between multiple "public needs." The need to drain water out of Lake Okeechobee affects counties and thousands of people throughout south and central Florida. The need to control and pre-treat discharges of nutrient freshwater before it enters the St. Lucie River and Indian River Lagoon estuarine system affects the ecological balance of the St. Lucie River and the Indian River Lagoon along with the citizens of Martin and St. Lucie Counties. The public needs mentioned above must be balanced against the need to protect isolated freshwater wetlands and upland habitat within Martin County. CERP projects are important for the benefit of Martin County in terms of providing water quality, the proper distribution and release of water, and the clean up of water. Cleaning up the Everglades is considered of vast importance. There are unique siting and locational requirements for public facilities such as stormwater facilities. For example, stormwater facilities are generally not placed on the highest grounds. They are generally in the low points in the community in terms of topography and roadways, and often are constrained because of right-of-way needs. The Department has encouraged local governments to be flexible with regard to implementation of CERP projects because of the public interest in achieving the goals of the Everglades restoration. CERP projects, which are state and federal projects, proceed through an extensive planning process, which includes an alternatives analysis so that the project maximizes general public facilities. Existing Plan policies do not provide waivers for stormwater management projects designed and constructed by local government. The Martin County Plan has one of the strongest comprehensive plans in the State of Florida with regard to protection of natural resources and some of the most stringent wetlands protection policies, exceeding the state minimum standards. Mitigation is a widely accepted way of protecting wetlands, and is specifically recognized as a method to compensate for loss of wetland functions. See Finding of Fact 141. (In terms of acreage, the Public Facilities Plan Amendment is likely to have a de minimus impact on wetland resources in Martin County.) In the Plan, mitigation of wetland impacts is permitted under limited circumstances. Prior to the Plan Amendment, there were seven listed waivers and exceptions regarding "wetland alteration[s]" and this Plan Amendment creates the eighth. The Plan Amendment provisions pertaining to stormwater projects provide waivers to the Plan GOPs concerning wetlands and uplands. Policy (h) of the Plan Amendment requires that Martin County stormwater projects and CERP projects avoid and minimize impacts to wetlands, and provides a hierarchy of habitats if impacts cannot be avoided. Projects must be designed "to cause the least amount of negative impact to wetlands." Examples of wetland habitats are ranked from lowest to highest in quality and importance. "Wetland quality will be assessed using the criteria established by the State of Florida" and "[a]ll projects shall follow all State and Federal regulations and permitting requirements," which include mitigation requirements. As in the case with all of the seven existing waivers to the wetlands policy, the persuasive evidence indicates that Policy (h) should be read in conjunction with the standard that there is no net loss of functions or the spacial extent of wetlands in Martin County. See Finding of Fact 96. The Plan Amendment (Policies o. and q.) also permit a waiver of the Plan's upland habitat protection requirements detailed in Sections 8-4.1.e. through n. and 9-4.A.7.e. through p., respectively, "to the minimum extent necessary" for stormwater projects listed in the CIP and facilities constructed as part of the CERP. Martin County also has some of the most stringent uplands protection policies in the State of Florida, with a goal of preserving 25 percent of native upland habitat on a countywide basis by 2005. See Findings of Fact 85-86. There is a significant amount of land acquisition being undertaken by Martin County, the State of Florida, and the federal government in Martin County. It is unlikely that this land will be developed. This land could contribute to Martin County being able to meet its goal of protecting 25 percent of native upland habitat on a countywide basis by 2005. All projects (regarding Policies o. and q.) "shall be designed to cause the least amount of negative impact to upland habitat." Impacts are to be avoided. The Plan Amendment specifies that waivers will be based on the principles "of protecting the highest quality habitat and impacting the lowest quality habitat." Examples are provided of habitats which are ranked from lowest to highest in quality and importance, i.e., common upland habitat impacted by exotic vegetation to common upland habitat which is undisturbed. Special habitat (endangered, unique or rare upland habitat) shall be protected as specified in the Plan. "All projects shall follow all State and Federal regulations and permitting requirements." (However, there are no State and Federal mitigation requirements for upland habitats. See Finding of Fact 88.) Also, there are no mitigation requirements in Subsections (h), o., and q., for upland habitat loss. But again, impacts to upland habitats are to be avoided. The Plan Amendment does not provide a waiver from the Plan protections afforded to special habitat (endangered, unique or rare upland habitat) as specified in Sections 8-4.A.1.g and 9-4.A.7.g. of the Plan. (For example, the Plan requires a 25 percent set aside in a preserve area for special habitat.) Similar to Objective 5, no waiver to the Plan or LDRs for Martin County stormwater facilities or CERP projects "shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service." The Public Facilities Plan Amendment affords protection to natural resources by requiring the least amount of impact and minimization and mitigation where required by permit regulations. It is at least the subject of fair debate that the Public Facilities Plan Amendment is not inconsistent with the Plan. It is at least the subject of fair debate that the data and analysis provided in this record for the Public Facilities Plan Amendment meet the statute and rule requirements. It is at least the subject of fair debate that the Public Facilities Plan Amendment provides predictable and measurable standards and are not vague. It is at least the subject of fair debate that the Public Facilities Plan Amendment will not lead to urban sprawl. Part IV of Ordinance No. 606 Petitioners claim that Part IV of Ordinance No. 606 "could result in the elimination of important policies and objectives in the Comprehensive Plan without the due process review required for Comprehensive Plan Amendments." Part IV pertains to "conflicting provisions" and states: "Special acts of the Florida Legislature applicable only to unincorporated areas of Martin County, County ordinances and County resolutions or parts thereof, and other parts of the Martin County Comprehensive Growth Management Plan in conflict with this ordinance are hereby superceded by this ordinance to the extent of such conflict." Martin County has approved amendments to Part IV in the "Stipulated Settlement Agreement" entered into by the parties in Case No. 02-1014GM resolving their differences regarding the Mixed Uses Plan Amendment 01-9 and Part IV of Ordinance No. 606. (The modified language is incorporated by reference herein.) Thus, the issue appears to be moot. The 1990 "Stipulated Settlement Agreement" In 1990, a "Stipulated Settlement Agreement" was agreed to by the parties in Department of Community Affairs, 1000 Friends of Florida, and Sally O'Connell v. Martin County, Case No. 90-2327GM. In this agreement, numerous remedial plan amendments were agreed upon by the parties. Petitioners contend that the Plan Amendments are inconsistent with the remedial amendments and thus render the entire Plan out of compliance. A plan amendment must be consistent with existing comprehensive plan provisions in order to be "in compliance." In order to determine whether plan amendments are internally consistent with the comprehensive plan, the challenged plan amendments are evaluated in the context of the entire plan, not only those provisions which were adopted pursuant to a settlement agreement. If the plan amendment has the effect of causing the entire comprehensive plan to not be "in compliance," the plan amendment, (and not the entire plan,) will not be "in compliance," because the plan and the plan amendments are measured by the same criteria. Further, consistency with the settlement agreement is not required and is not within the compliance criteria set forth in Section 163.3184(1)(b), Florida Statutes. The Plan Amendments must be consistent with the entire Plan, not the settlement agreement or the remedial amendments. As previously noted, it is at least the subject of fair debate that all of the Plan Amendments are not inconsistent with the Plan. The doctrines of res judicata and collateral estoppel do not apply to the Plan Amendments at issue in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendments Nos. 01-11 and 01-12 adopted by Martin County pursuant to Ordinance No. 606 are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 1st day of July, 2003, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2003.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-287 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been ol, U.S. Mail to each of the persons listed below on this nD. day of Ages 2009. Paula Ford pore Clerk The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By U.S. Mail Thomas S. Hogan, Jr. City Attorney The Hogan Law Firm 20 South Broad. Street Brooksville, Florida 34601 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
The Issue Whether Amendment 15-1ACSC to the Monroe County Comprehensive Plan, adopted by Ordinances 003-2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2015).1/
Findings Of Fact The Parties The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. Petitioners reside in, and own property within, the County. Petitioners submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Rockland owns the property subject to the Plan Amendment and is the applicant for the Plan Amendment.4/ The Navy owns the Station in the County and submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. The Subject Property The Plan Amendment affects five different parcels of property in the Lower Keys. The parcels are owned by Rockland and are all either current or former mining sites with developed ancillary uses. Most of the property is vacant scarified land and the remainder supports warehousing and distribution facilities and related uses. Four of the parcels are located on Rockland Key (the Rockland parcels): two along U.S. Highway 1 and two on the north side of the Key along the Gulf of Mexico. Together, the four parcels total 29.59 acres. The existing FLUM designation of the parcels is Industrial, the primary purpose of which is to “provide for the development of industrial, manufacturing, and warehouse and distribution uses.” FLUE Policy 101.4.7. (2015).5/ The non-residential development potential of the property is between 322,235 and 773,364 square feet. The Industrial category also allows residential development at a density of one dwelling unit per acre (1du/acre) and a maximum of 2du/buildable acre.6/ Under the existing FLUM category, the Rockland parcels could be developed for a maximum of 47.3 residential units.7/ The parcel on Big Coppitt Key (the Big Coppitt parcel) is a narrow L-shaped 14.8-acre property bordering a former mining pit. The parcel runs north along the western boundary of Petitioners’ residential subdivision, then west along the Gulf of Mexico. Petitioners’ homes are located directly adjacent to the Big Coppitt parcel. The majority of the parcel (12.33 acres) is designated Industrial and the remainder (2.5 acres) as Mixed Use/Commercial Fishing (MCF). The non-residential development potential of the Big Coppitt parcel is between 161,498 and 365,816 square feet. Under the existing FLUM categories, the Big Coppitt parcel could be developed for a maximum of 43.7 dwelling units. Together, the subject property could be developed for a maximum of 91 dwelling units or 1.1 million square feet of non- residential uses, or some proportional mix thereof. The Plan Amendment The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial to Commercial. The Commercial FLUM category does not allow residential development, thus limiting future development of the property to between 193,341 and 644,470 square feet of non-residential uses. The Plan Amendment changes the FLUM designation on the Big Coppitt parcel to Mixed Use/Commercial (M/C), which allows residential development at a maximum density of 2-8du/acre. Under the M/C designation, the Big Coppitt parcel could be developed for a maximum of 213.6 dwelling units. Under the M/C designation, the Big Coppitt parcel has a non-residential development potential of between 64,599 and 290,697 square feet. However, the Plan Amendment also creates FLUE Policy 107.1.6, a sub-area policy applicable to the Big Coppitt parcel. The policy restricts development to deed- restricted affordable housing units (minimum mix of 10 percent median-income and at least 20 percent combination of low- and very low-income categories) and employee housing. The policy prohibits all non-residential development of the property, including dredging, and prohibits development of market-rate and transient-dwelling units. As adopted, the Plan Amendment authorizes development of up to 213 affordable housing units, no market rate units, no transient units, approximately 644,000 square feet of non- residential uses, and no dredging of the existing mining pit on the Big Coppitt parcel. Compared to the existing FLUM designations of the subject property, that is a potential increase of 114 units and a decrease of approximately 456,000 square feet of non-residential development. Naval Air Station Key West Rockland Key is located directly across U.S. Highway 1 from the Station. The Big Coppitt parcel is in close proximity to the Station. The Station’s Boca Chica airfield has been in operation since 1943. The primary mission at Boca Chica is to train pilots for air-to-air combat and to meet aircraft carrier qualifications. Fighter pilots from all over the country are trained for air-to-air combat primarily at the Station. The Station is uniquely situated to accomplish its training mission because there is little commercial air traffic and a large unencumbered airspace in close proximity to the airfield. Pilots who take off from Boca Chica quickly arrive in vast airspaces west and south of the Station for air-to-air combat training. This allows for very efficient use of fuel for training. Pilots train for aircraft carrier qualifications through field carrier landing practice at Boca Chica. Field carrier landing practice requires flying the same touch-and-go pattern at the field that the pilot would fly at an aircraft carrier. Each pilot in a squadron must fly the pattern accurately to a certain “readiness level” before the squadron can be certified to deploy. The readiness level is based on the number of sorties completed. One sortie includes at least one takeoff and one landing. Boca Chica typically operates Monday through Saturday from 8:00 a.m. to 10:00 p.m. However, the airfield operates outside of those hours, and on Sundays, when training missions dictate. The airfield averages 36,000 sorties per year. The Station is extremely valuable to the Department of Defense due to the size of the airspace, weather, lack of commercial traffic interference, and capacity for training missions. As the commanding officer of the Station, one of Captain Steven P. McAlearney’s primary duties is to protect the military value of the Station by protecting the airspace and existing operation capacity. As such, Captain McAlearney is concerned with encroachment by development incompatible with Station operations. Navy AICUZ The Navy has established a Military Installation Area of Impact (MIAI) surrounding the Station. In its most recent Environmental Impact Statement (EIS), the Navy has designated Air Installation Compatible Use Zones, or AICUZ, within the MIAI. The AICUZ are mapped as noise contours extending outward from the Station. Each contour indicates a range of day- night average noise levels (DNL) which are expected to impact properties within the specific contour. The AICUZ map is accompanied by a Land Use Compatibility Table (the table) containing recommendations for compatibility of various land uses within the specific noise contours. According to the table, residential land uses are “generally incompatible” in both the 65-69 and 70-74 DNL zones, also referred to as “noise zones.” The Navy discourages residential use in DNL 65-69 zones, and strongly discourages residential use in DNL 70-74 zones. The table deems residential use in the 75-79 DNL zone as “not compatible” and recommends local government prohibit residential use in those zones, also referred to as “incompatibility zones.” FLUE Policy 108.2.5 On May 22, 2012, the County adopted FLUE Policy 108.2.5, which took effect on July 25, 2012. The Policy, which is lengthy and is not set forth in full herein, generally prohibits applications to change FLUM designations within the MIAI after the Policy’s effective date. However, the Policy sets forth a procedure by which FLUM amendment applications “received after the effective date of this [p]olicy,” which increase density or intensity within the MIAI, may be approved. The procedure requires the County to transmit the application to the Navy for a determination of whether the property subject to the application is within a noise zone or an incompatibility zone, and whether the proposed density or intensity is incompatible with Station operations. If the Navy determines an application is within an incompatibility zone, the Policy requires the County to determine whether appropriate data and analysis supports that determination, and, if so, maintain the existing designation. Additionally, the Policy states that “Monroe County shall encourage the Navy to acquire these lands . . . for the protection of the public health, safety, and welfare of the citizens of the Florida Keys.” If the Navy determines an application is within a noise zone, the Policy requires the applicant to submit a supplemental noise study, based on “professionally acceptable methodology,” to establish whether the property is within a 65 DNL or higher zone. The Navy has nine months from receipt of the supplemental noise study to provide comments to the County concerning whether the noise study is based on professionally accepted methodology. After receipt of the Navy’s comments, the County may allow the application to proceed through the public hearing process, but must also adopt a resolution determining whether the property subject to the application is subject to the density and intensity restrictions within the MIAI. Affordable Housing The parties stipulated that the County has a demonstrated community need for affordable housing. A 2014 study projected a deficit of 6,500 affordable units in the City of Key West alone. In 2013, 51 percent of all County households were “cost-burdened,” meaning they paid more than 30 percent of their income for housing. That figure compares to 43 percent of cost-burdened households statewide. In the County, more than half of renters are cost- burdened and about 45 percent of home owners are cost-burdened. The lack of affordable housing in the County is exacerbated by four factors: high land values; geographic and environmental limitations on development; artificially- controlled growth of housing supply8/; and a tourist-based economy which drives lower paying service-sector jobs. The lack of affordable housing impacts not only the tourism industry, but also public-sector agencies, including the school system, emergency management, and even the County’s Planning and Environmental Resources Department. Lack of affordable housing makes it harder to recruit and retain school teachers, police, and firefighters, among other public-sector employees. High turnover rates in these areas present budget and personnel challenges for the County. The County has 460 existing affordable housing units for the very-low, low-, and median-income households, and 354 units for moderate-income households (a combination of rental and owner-occupied units). The greatest percentage of existing affordable housing units is deed-restricted for the moderate-income range. The yearly income limit for a three-person household (a couple with a child) in the very-low income category is $52,400; the low-income category is $83,800; and the median- income limit is $104,800. The moderate-income level maximum is $125,760 for rental, and $167,680 for owner-occupied. The County has approximately 700 affordable housing units to be allocated through the year 2023. The Plan Amendment Application On May 18, 2012, Rockland applied for a FLUM amendment which included the Rockland parcels, but did not include the Big Coppitt parcel. The application affected 141 acres (approximately 77 upland acres). As proposed, the application would have allowed development of a maximum of 385 dwelling units, 1,155 transient rooms (or spaces), and 500,940 square feet of non-residential uses, or some proportional mix thereof. The application was reviewed by the County’s development review committee (DRC) on November 27, 2012, which recommended denial due to the density and intensity impacts. Largely in response to the DRC’s concerns, and after lengthy discussions with County staff, Rockland submitted revisions to its application on April 1, 2014. The revisions greatly reduced the overall size, as well as the density and intensity impacts of, the proposed amendment. The revised application included the Big Coppitt parcel for the first time. Rockland revised the application again on June 17, 2014, to reflect the same proposed acreages and designations as the approved Plan Amendment. The application, as amended on June 17, 2014, was approved by both the DRC and the County Planning Commission. On December 10, 2014, the Board of County Commissioners voted to transmit the application to the state land planning agency, the Department of Economic Opportunity (DEO), pursuant to section 163.3184(4).9/ On March 20, 2015, DEO issued its Objections, Recommendations, and Comments (ORC) report objecting to the Plan Amendment, particularly the increased residential development potential on the Big Coppitt parcel. The ORC report included the following relevant objections: The Plan Amendment is inconsistent with policy 108.2.6, which adopts the MIAI Land Use Table, designating residential uses as “generally incompatible” in the 65-69 DNL zone. The Big Coppitt parcel lies within the 65-69 DNL zone where residential use is discouraged. The Land Use Table notes that “[a]lthough local conditions regarding the need for affordable housing may require residential uses in these [z]ones . . . . The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need for the residential use would not be met if development were prohibited in these [z]ones.” While the applicant supports the application by arguing that it will support a multi- family affordable housing development, nothing in the amendment provides assurance that any future residential development on this property will be for affordable housing. While there is a shortage of affordable housing in the County, especially in the lower keys, there is no shortage of vacant lots with density for housing. The County failed to establish that, “in the absence of viable alternative development . . . a demonstrated community need for the residential use would not be met if development were prohibited” on the parcel. The [Big Coppitt] parcel is entirely within the Coastal High Hazard Area (CHHA) and therefore, inconsistent with Monroe County comprehensive plan policy 101.14.1, which states, “Monroe County shall discourage developments proposed within the [CHHA].” The [Big Coppitt] parcel is very narrow and development of the area adjacent to the mine pools could have negative water quality impacts on the tidally influenced mining pool and is inconsistent with the Principles for Guiding Development in the Florida Keys. After consideration of the ORC report, Rockland submitted a text amendment application creating FLUE Policy 107.1.6 to restrict development on the Big Coppitt parcel to affordable housing. In addition, the sub-area policy requires noise attenuation of all habitable buildings in the 65-69 DNL to an indoor noise level reduction of at least 25 decibels (25dB). Similarly, the Policy requires noise attenuation of habitable buildings within the 70-74 DNL zone to achieve an indoor noise level reduction of at least 30dB. The amendment to the FLUM remained the same. The County adopted both the FLUM amendment, and the text amendment creating Policy 107.1.6, on February 16, 2016, and forwarded the Plan Amendment to DEO for review, pursuant to 163.3184(4)(e)2. On April 25, 2016, DEO issued a notice of intent to find the Plan Amendment “in compliance.” The instant Plan Amendment challenge followed. Petitioners’ Challenge Petitioners allege two bases on which the Plan Amendment should be found not “in compliance.” First, Petitioners allege the Plan Amendment is internally inconsistent with Plan Policies 108.2.5 and 101.14.1, in violation of section 163.3177(2), which states that “[c]oordination of the several elements of the [Plan] shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.” Second, Petitioners allege the Plan Amendment is inconsistent with the Principles, in violation of section 163.3184(1)(b). That statute requires all plan amendments in the Keys Area of Critical State Concern (ACSC) be consistent with the applicable principles. Policy 108.2.5 Petitioners allege that Policy 108.2.5 applies to the Plan Amendment because the application was filed after Policy 108.2.5 took effect on July 25, 2012. If proven, Policy 108.2.5 would require the applicant to follow the procedure for approval of residential density in the noise zones, including submission of a supplemental noise study and a legislative finding as to whether the Plan Amendment is subject to the density and intensity restrictions in the MIAI. Rockland’s original application for the Plan Amendment was made on May 18, 2012, prior to the effective date of Policy 108.2.5. Petitioners argue that the revised application on April 1, 2014, should be considered a new application subject to Policy 108.2.5 because it was made two years after adoption of the Policy and contained significant substantive changes to the original application. In essence, Petitioners argue that the 2014 revised application (and subsequent changes thereto) constitute a new and different application than the May 2012 application. Petitioners introduced no evidence that any administrative provision of the Plan, or any other County ordinance or regulation, provides for expiration of an application for plan amendment after a specified time period. The April 2014 changes were filed with the County in strike-through/underline (legislative format) as “revisions to its FLUM amendment application.” The June 17, 2014, changes were likewise filed in legislative format as “additional revisions to its FLUM amendment application.” One of the main reasons for delay between the May 2012 application and the April 2014 revisions was County staff’s recommendation that the Rockland parcels be rezoned to the Commercial-2 (C-2) zoning category, a category which was being created and would be consistent with the Commercial FLUM category. Staff recommended the category because it would prohibit residential uses but allow Rockland to proceed with plans for commercial and retail development of the formerly industrial property. The C-2 zoning category was not finalized and adopted by the County until early 2014. The application, as revised in June 2014, was not reviewed again by the DRC, but was set for hearing by the Planning Commission on August 27, 2014, and considered by the County Commission on December 10, 2014, which approved the application for transmittal. Rockland was not required to pay a second application fee for the revised application in 2014; however, the County charged Rockland an additional fee to cover a second hearing before both the Planning Commission and the County Commission. The County’s director of planning and environmental resources, Mayte Santamaria, testified that it is not unusual for delays to occur between initial applications for, and final adoption of, plan amendments. Some applicants request an application be put on hold while they address issues with surrounding property owners. Other times, significant changes are made in the interim, especially in response to concerns raised by the state land planning agency, which take time to draft and refine. In neither case does the County consider the passage of time to require a new application. Likewise, the revisions do not require a new application, even revisions which remove property from, or add property to, a FLUM amendment application. Clearly, Petitioners believe it was unfair to allow the application, which was “on hold” for almost two years and revised in 2014 to exclude some of the original property, and include additional property adjacent to their subdivision, to proceed without applying newly-adopted plan policies. Despite their belief, Petitioners did not prove that the application, as revised in April and June 2014, was a new application subject to Policy 108.2.5. Policy 101.14.1 Next, Petitioners allege the Plan Amendment is internally inconsistent with Policy 101.14.1, which provides that the “County shall discourage developments within the Coastal High Hazard Area (CHHA).” The subject property is located entirely within the CHHA. In fact, Ms. Santamaria testified that “almost the entire Keys is in the [CHHA],” with exception of some areas just along U.S. Highway 1 in the Upper Keys. The Plan Amendment reduces total potential non- residential intensity on the subject property, while increasing potential residential density. The Plan Amendment also eliminates future transient (hotel and motel) density, as well as future dredging and other industrial uses. “Development” is defined broadly in section 380.04 as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” § 380.04(1), Fla. Stat. The definition specifically includes “a change in the intensity of use of land, such as an increase in the number of dwelling units . . . on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units . . . on land.” § 380.04(2)(b), Fla. Stat. Notably, the definition also includes “mining or excavation on a parcel” and “deposit . . . of fill on a parcel of land.” § 380.04(2)(c) and (d), Fla. Stat. Two expert witnesses testified regarding whether the Plan Amendment violates the County’s policy to discourage development within the CHHA. In Ms. Santamaria’s opinion, the Plan Amendment, on balance, is consistent with the policy to discourage development because it prohibits residential development of the Rockland parcels, and prohibits all but affordable housing units on the Big Coppitt parcel. In addition, the amendment prohibits future uses which are within the statutory definition of “development,” such as industrial, marinas, market-rate housing, and residential subdivisions. Max Forgey, expert witness for Petitioners, opined that the increase in density from 91 to 213 units is “as far from discouraging as I could imagine.” Overall, the Plan Amendment reduces non-residential intensity while increasing residential density. Given the totality of the evidence, it is reasonable to find that the Plan Amendment complies with Policy 101.14.1 by discouraging many types of development allowed on the property under the existing FLUM designations. Principles for Guiding Development Petitioners’ final argument is that the Plan Amendment is inconsistent with the Principles in the Keys ACSC. The property subject to the Plan Amendment is located in the Keys ACSC, thus, subject to the Principles in section 380.0552(7), which reads as follows: (7) PRINCIPLES FOR GUIDING DEVELOPMENT.— State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as specified in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which is adopted and incorporated herein by reference. For the purposes of reviewing the consistency of the adopted plan, or any amendments to that plan, with the principles for guiding development, and any amendments to the principles, the principles shall be construed as a whole and specific provisions may not be construed or applied in isolation from the other provisions. However, the principles for guiding development are repealed 18 months from July 1, 1986. After repeal, any plan amendments must be consistent with the following principles: Strengthening local government capabilities for managing land use and development so that local government is able to achieve these objectives without continuing the area of critical state concern designation. Protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. Protecting upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. Ensuring the maximum well-being of the Florida Keys and its citizens through sound economic development. Limiting the adverse impacts of development on the quality of water throughout the Florida Keys. Enhancing natural scenic resources, promoting the aesthetic benefits of the natural environment, and ensuring that development is compatible with the unique historic character of the Florida Keys. Protecting the historical heritage of the Florida Keys. Protecting the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection, treatment, and disposal facilities; Solid waste treatment, collection, and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. Protecting and improving water quality by providing for the construction, operation, maintenance, and replacement of stormwater management facilities; central sewage collection; treatment and disposal facilities; the installation and proper operation and maintenance of onsite sewage treatment and disposal systems; and other water quality and water supply projects, including direct and indirect potable reuse. Ensuring the improvement of nearshore water quality by requiring the construction and operation of wastewater management facilities that meet the requirements of ss. 381.0065(4)(l) and 403.086(10), as applicable, and by directing growth to areas served by central wastewater treatment facilities through permit allocation systems. Limiting the adverse impacts of public investments on the environmental resources of the Florida Keys. Making available adequate affordable housing for all sectors of the population of the Florida Keys. Providing adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan. Protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintaining the Florida Keys as a unique Florida resource. (emphasis added). Petitioners’ challenge, as set forth in the Amended Petition, focuses on subsections (7)(a), (b), (e), and (h)4. Petitioners introduced no evidence to support a finding that the Plan Amendment is inconsistent with either subsection (7)(a), (b), or (e) regarding the local government’s capability to manage land use and development, protect shoreline and marine resources, and protect water quality, respectively. 1. section 380.0552(7)(h)4. Petitioners argue that the Plan Amendment will adversely impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station, in violation of subsection (7)(h)4. A portion of the Rockland parcels lie within the 75-79 DNL zone, in which the Navy deems residential development incompatible and recommends that the local government prohibit it. The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial, which allows residential development at 47.3du/acre, to Commercial, which does not allow any residential development. Thus, the Plan Amendment prohibits future residential development in the 75-79 DNL zone as recommended by the Navy. A portion of the Rockland parcels and the southern end of the Big Coppitt parcel lie within the 70-74 DNL zone. The remainder of the Big Coppitt parcel lies within the 65-69 DNL zone. The Navy deems residential development in the 70-74 and 65-69 DNL zones as “generally incompatible,” but not prohibited. The AICUZ table strongly discourages residential use in the 70-74 DNL zone, and discourages residential use in the 65-69 DNL zone. With respect to the 65-69 and 70-74 DNL zones, the AICUZ contains the following recommendations: The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need would not be met if development were prohibited in these zones. * * * Where the community determines that these uses must be allowed, measures to achieve an outdoor to indoor [noise level ratio or] NLR of at least 25 decibels (dB) in DNL 65 to 69 and NLR of 30 dB in DNL 70 to 74 should be incorporated into building codes and be in individual approvals . . . . Normal permanent construction can be expected to provide a NLR of 20 dB, thus the reduction requirements are often stated as 5, 10, or 15 dB over standard construction . . . . The Plan Amendment, through the sub-area policy, prohibits residential dwellings on that portion of the Big Coppitt parcel within the 70-74 DNL zone. As such, the Plan Amendment prohibits residential use where the Navy strongly discourages said use. The majority of the Big Coppitt parcel lies within the 65-69 DNL zone. The Plan Amendment increases allowable residential density from 91 units to 213 units. Through the sub-area policy, the Plan Amendment requires sound attenuation of at least 25 dB for residences in the 65-69 DNL zone. Further, the Plan Amendment requires sound attenuation of at least 30 dB for any habitable buildings within the 70-74 DNL zone.10/ One purpose of recommending sound attenuation for dwelling units within noise zones of 65 DNL and higher, is to limit the number of community noise complaints to the Station. Community complaints regarding noise from Station exercises are directed to the Station’s Air Operations Department. The Station receives an average of 10 complaints per month, but that number fluctuates with the number of squadrons in town for training at the Station. Sometime in the past, the Station altered a training flight arrival pattern known as the Dolphin One Arrival. The arrival pattern is now called the King One, and it avoids directly flying over Stock Island. The evidence did not clearly establish whether the pattern was changed due to community noise complaints or due to the fact that Stock Island was in residential use. Captain McAlearney testified that because of the population on Stock Island, we set up a little to the south of what would be optimum for practicing, or most safe, frankly, for practicing a carrier landing or bringing a formation of airplanes into the field. On cross-examination, Captain McAlearney admitted that the change occurred well before his time as station commander and that he had no direct knowledge of the reason the change was made. Petitioners argue that the County must do more than just establish a community need in order to approve new housing in the 65-69 DNL zone consistent with the Navy recommendations. They argue that, pursuant to the AICUZ table, the County must establish that no viable alternative development options exist and that the demonstrated community need would not be met if development were prohibited in that zone. The County conceded that other parcels are available for construction of affordable housing within the Keys, however, there are very limited locations of Tier III,11/ scarified properties, outside of the 65-69 DNL zone in the Lower Keys with potential for affordable housing development. The parcels are scattered and none would support a large-scale affordable housing development such as is proposed pursuant to the Plan Amendment. While the County’s demonstrated need for affordable housing may be met, eventually, by incremental development of smaller scattered parcels and occupancy in renovated mobile home parks, the Plan Amendment addresses a significant amount of the affordable housing deficit in the immediate future. Based on the totality of the evidence, Petitioners did not demonstrate that the Plan Amendment is inconsistent with section 380.0552(7)(h)4. In reviewing and recommending adoption of the Plan Amendment, County staff carefully considered the recommendations of the Navy AICUZ table and revised the amendment to prohibit residential use in the 75-79 DNL zone, where the Navy deems those uses incompatible and recommends prohibition of said uses; and to prohibit residential use in the 70-74 DNL zone, where the Navy deems those uses generally incompatible and strongly discourages them. The Plan Amendment was crafted to limit residential use to those areas within the 65-69 DNL zone, where Navy discourages, but does not recommend prohibition of, residential uses. Further, County staff determined a local community need for affordable housing, determined that the need could not be addressed through viable alternatives, and required sound attenuation as recommended by the Navy. While the Navy introduced some evidence regarding potential impacts to the Station from increased residential density on Big Coppitt Key, the evidence was speculative. Captain McAlearney’s testimony did not establish that additional noise complaints (assuming the new development would generate new noise complaints) would negatively impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station. 2. section 380.0552(7)(g) Although not included in their Amended Petition, Petitioners argued at hearing that the Plan Amendment was inconsistent with section 380.0552(7)(g), the Principle to “protect[] the historical heritage of the Florida Keys.” Petitioners’ expert based his opinion of inconsistency with this principle on the long-standing presence of the Station in the Keys and its important role in naval air training. No evidence was introduced to establish that the Station itself has a historic resource designation or contains any historic structures or archeological resources. The site is not designated as an historic resource by either the County or the State. Petitioners did not prove the Plan Amendment is inconsistent with this Principle. Other Principles A. section 380.0552(7)(l) Section 380.0552(7)(l) sets forth the Principle to “[make] available adequate affordable housing for all sectors of the population in the Florida Keys.” The Plan Amendment limits development of the Big Coppitt parcel to deed-restricted affordable housing and requires, at a minimum, a mix of at least 10 percent median- income category and at least 20 percent mix of very-low and low- income categories. The Plan Amendment would allow development of 213 of the 700 affordable housing units the County has to allocate through 2023. The Plan Amendment addresses affordable workforce housing needs in the County for income levels in both the service industry and the public sector. The Plan Amendment furthers section 380.0552(7)(l) by making available affordable housing for residents in a range of income levels from very low- and low-income to moderate-income. B. Remaining Principles The majority of the remaining Principles either do not apply to the Plan Amendment, or have only limited application. Very little evidence was introduced regarding these Principles. No evidence supports a finding that the Plan Amendment is inconsistent with the remaining Principles. The evidence did not establish that the Plan Amendment is inconsistent with the Principles as a whole.
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 Monroe County Comprehensive Plan Amendment adopted by Ordinances 003- 2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of August, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 9th day of August, 2016.
The Issue The basic allegations of the complaint having been proven or admitted, the sole question at hearing was one of mitigation.
Findings Of Fact Rivers is a licensed general and a licensed pool contractor. All the complaints against Rivers arose in relationship to his pool contracting activities. Rivers did begin construction of two pools in Levy County without first obtaining a building permit as required by the Levy County Building Code, a certified copy of which was identified by the Levy County Building official. Rivers paid a late fee in both instances. Although in one instance all inspections were made, in the second instance no inspections were possible because construction was essentially complete when the construction was discovered by the Levy County Building official. Rivers did fail to pay materialmen on two pools although he received payment in full for the jobs. His failure resulted in materialmen's liens being placed on the property, although Rivers provided each owner a written statement that all bills had been paid. Rivers admitted that he had not paid the materialmen because he lacked funds to do so. His contract with both parties for construction of a specified pool contained a provision stating that he would provide them an affidavit that all labor and material had been paid prior to receipt of final payment on the contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Residential Pool Contractor's License and General Contractor's License of Norman Rivers be suspended for a minimum of ninety (90) days and that thereafter be reinstated upon his satisfying the Board of his ability to meet his financial obligations. DONE and ORDERED this 15th day of September, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488 9675 COPIES FURNISHED: Mr. J.K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Mr. Norman Rivers 1710 South East 19th Street Ocala, Florida 32670
