The Issue The issue is whether the City of Crestview's (City's) small-scale development amendment adopted by Ordinance No. 1370 on November 26, 2007, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background B & H is a Florida corporation which owns and operates a number of concrete batch plants and a surveying and engineering company known as Integrated Engineering Solutions, LLC. The parties have stipulated that B & H is the owner of property within the City and submitted comments to the City in support of the change in the land use prior to the adoption of the plan amendment. As such, B & H is an affected person and has standing to participate in this matter. In 2005, B & H purchased a 75.56-acre tract of vacant, undeveloped land in the unincorporated part of Okaloosa County (County), just southwest of the City. The parcel is generally bounded on its northern side by Interstate 10 (I-10) and by a 150-foot wide Gulf Power Company easement on its southern boundary. All of the property carried a County land use designation of RR, which limits development to one residential unit per five acres. See Future Land Use Element (FLUE) Policy 10.1.e. (Petitioner's Exhibit A). After B & H purchased the property, it applied for development approval (including a land use change from RR to an industrial) from the County. In the face of substantial public opposition, and a negative staff recommendation, B & H withdrew its application during a County Planning Commission hearing on April 12, 2007. (The County staff noted that the property "is located in the immediate vicinity of . . . a residential subdivision"; that a wide range of industrial uses would be allowed on the property if it was changed to IN; that the requested action would have the effect of "spot zoning"; that there is no shortage of industrial-zoned lands in other areas of the County; and that "the requested action is not compatible with the proximate residential subdivision and does not result in an appropriate transition of uses, densities, and intensities as expressed in [FLUE] Policy 4.4.") Shortly thereafter, B & H filed a petition for voluntary annexation with the City. On August 27, 2007, the City annexed a 9.98-acre parcel of B & H's land lying in the eastern half of the larger parcel. (The remainder of the larger parcel remains in the County.) B & H then filed an application in the form of a small-scale development amendment seeking a change in the land use on the property from RR to IN. Because the size of the parcel was less than 10 acres, the change in land use was accomplished by this type of amendment, which is not reviewed by the Department of Community Affairs (Department). See § 163.3187(1)(c)1. and (3)(a), Fla. Stat. According to FLUE Policy 7.A.3.4.f. in the City's Plan, the IN category is designed to protect lands for production and distribution of goods and for other industrial activities. A wide range of industrial uses and commercial uses are allowed in this category. Specific uses include light and heavy manufacturing, assembly, training facilities, vehicle repair (including body work and painting), packaging, processing, wholesale business and warehousing, truck terminals, borrow pits, asphalt/concrete plants, heavy equipment sales, service and/or rentals, and other uses similar to those listed herein. Residential uses are prohibited except as an accessory to a permitted use. In addition to the application for a change in the FLUM, B & H submitted an application for site plan approval for a concrete batch plant to be located on the southern end of the subject property. This use would be consistent with the IN category. However, until this proceeding is concluded, the site plan will not be reviewed, modified, or approved by the City, and therefore any development provisions incorporated therein are not final. Further, the proposed use (a concrete batch plant) requires the issuance of a permit by the Department of Environmental Protection (DEP). On September 9, 2007, the City Planning Commission conducted a public hearing to consider the amendment and voted 4-1 to recommend approval of the application to the City Council. On October 8, 2007, a first reading of Ordinance No. 1370 implementing the amendment occurred at the City Council meeting. On October 22, 2007, a public hearing was held before the City Council. The City Council voted 3-2 to deny the amendment. On November 13, 2007, the City Council conducted another public hearing for the first reading of the amendment. On November 26, 2007, the City Council conducted a second public hearing on the amendment and adopted Ordinance No. 1370 enacting the amendment. (New zoning on the land will not be imposed until or unless the plan amendment here is found to be in compliance.) Although not subject to review by the Department, the following day the City sent a copy of the adopted Ordinance to the Department. On December 24, 2007, Petitioner, who resides in Antioch Estates, a nearby residential subdivision located within the City, filed her Petition with DOAH. On February 7, 2008, she moved to amend the Petition and authorization to do so was granted by Order dated February 8, 2008. In her Amended Petition, she generally contended that the amendment is not in compliance because it is internally inconsistent with other Plan provisions in several respects; the amendment is not supported by adequate data and analysis; the property being reclassified is greater than 10 acres in size and therefore cannot qualify as a small-scale development amendment; the City did not analyze the financial feasibility of the amendment; and the City failed to conduct the necessary intergovernmental coordination and review. The parties have stipulated that Petitioner resides within the City and offered comments in opposition to the amendment prior to its adoption. As such, she is an affected person and has standing to challenge the amendment. At the hearing, Petitioner, who is a planner for the City of Destin but resides in Crestview, acknowledged that before she filed her initial Petition, her husband was contacted by a representative of Couch Ready Mix USA (Couch), a non-party who operates a concrete batch plant 0.8 miles southeast of Antioch Estates on Old Antioch Road, and with whom B & H would compete if the application is approved and a new concrete batch plant constructed on the site. However, Petitioner stated that she would have filed a petition even if her husband had not been contacted by Couch. Even so, it is fair to infer from the evidence that funding for Petitioner's counsel and two experts was provided by Couch. The Subject Property The subject property is a 9.98-acre parcel bordered on the north by I-10 and on the east, west, and south by property owned by B & H, all of which is designated RR and zoned Agricultural. Directly to the east of the larger B & H parcel is a 70-foot strip of vacant land owned by Rhett Enzor, a non- party whose land stretches from I-10 southward to the Gulf Power easement. The Enzor property also carries a RR land use designation and Agricultural zoning. Besides the 70-foot strip on the eastern side, Mr. Enzor owns the other property that surrounds the larger parcel to the south and west; however, the extent of that property is not of record. Just to the east-northeast and adjacent to the Enzor property is a residential subdivision (Antioch Estates) comprised of around 125 homes. The subdivision is divided into two sections - the larger section lying north of I-10 and the smaller section located just south of I-10. It is unclear whether the entire subdivision has 125 units, or if the southern portion alone has that number. In any event, Petitioner and members of the public who offered comments at the hearing reside in the southern portion of the subdivision and oppose the application. At its closest point, the western boundary of the subdivision (particularly lots 51-55) appears to be slightly more than 600 feet from the 9.98-acre parcel, but no more than 70 feet or so from the eastern boundary of the larger parcel. The distance to the proposed concrete batch plant, which will lie in the south-southwest end of the subject property, is slightly less than one-quarter mile. An elementary school (Antioch Elementary School) with an enrollment of around 800 students and 100 staff, built sometime after 1996, is located just east of Antioch Estates. A former borrow pit, Blocker Pit, lies south of the subdivision, while an active borrow pit, Garret Pit, lies around one-half mile or so southeast of the subdivision. Antioch Estates is classified by the City as Low Density Residential (LDR), while the school is in the Public Use land use category. Under FLUE Policy 7.A.3.4.a., the LDR category "is limited to residential uses, customary accessory uses, recreation uses, churches and places of worship and planned unit developments. Non-profit and civic organizations may be permitted by special exception. This category is intended for single family homes which may be developed with up to six (6) units per gross acre." Antioch Road appears to be a major arterial road running in a northwest-southeast direction (crossing over or under I-10) just east of the elementary school. (Less than a mile southeast of the school, Antioch Road becomes P.J. Adams Parkway.) All vehicles wishing to access the school, Antioch Estates, or the 9.98-parcel (as well as the larger B & H parcel) must do so by turning off of Antioch Road onto Garret Pit Road, a County-maintained road which intersects with Antioch Road just south of I-10. Within a short distance, Garret Pit Road intersects with Whitehurst Lane, a paved road which runs in a northwest direction from Garret Pit Road to the school and eventually makes a loop in the subdivision. At the Whitehurst Lane intersection, Garret Pit Road turns into a dirt road. Vehicles traveling to B & H's property continue south on Garret Pit Road for 300 feet or so until it intersects with Point Center Road, a privately-owned, unplatted and undedicated dirt road which runs directly west from Garrett Pit Road (and roughly parallel to I-10) through the Enzor strip and into the eastern side of the B & H property. From there, it appears that vehicles would turn south for a short distance on Borrow Pit Road (also referred to as Barrow Pit Road on certain map exhibits), another dirt road which eventually turns westward when it reaches the southern boundary of B & H property. The 9.98-acre parcel is around 66 feet north of Borrow Point Road. According to a B & H witness, Point Center Road and Borrow Pit Road are not actually roads, but are more akin to dirt trails which trucks now use to reach the excavating and land fill sites. Finally, Point Center Road passes approximately 140 feet south of, and parallel to, the southern boundary of Antioch Estates. When the subject property was annexed into the City, it retained the County FLUM designation of RR and zoning of Agricultural. The FLUM and zoning designations are retained until a plan amendment and rezoning is approved by the City. Under the County's Plan, residential uses in RR must not exceed one unit per five acres. There is currently an inactive borrow pit (covering around six acres) on the southern part of the 9.98-acre parcel, which extends westward into the larger parcel. B & H says it has no intention of resuming this operation. A small storage facility with "manholes," "pipe," and other "equipment" sits on the southwestern corner of the property, while a small wetlands area of less than an acre occupies the northwestern corner. To the west of the subject parcel on the northwestern corner of the larger parcel is an active, permitted 7.5-acre Construction & Demolition (C & D) landfill. There is some ambiguity in the testimony over the actual size of the landfill; however, in DEP's letter of intent dated March 17, 2006, which transferred Permit No. 0002800-002-SO from the original owner (Point Center, Inc.) to B & H, it stated that B & H is authorized to operate a 7.5-acre disposal unit until March 17, 2010. See Petitioner's Exhibit B. Although the useful life of the existing C & D landfill will eventually run out, at the hearing B & H's Project Manager stated that the company has an application pending with DEP to expand the landfill. The status of that matter is unknown. Expansion of a non-conforming land use, however, may be problematic. See Finding of Fact 21, infra. Besides the active C & D landfill, B & H is also periodically retrieving fill dirt from the larger parcel for site work operations, using up to 30 dump trucks for this work. According to a witness, the larger parcel still has around 3,000,000 cubic yards of usable dirt. Whether B & H is authorized to conduct borrow pit operations on the larger parcel is not of record. More than likely, once the landfill is used up (or no later than March 2010 when the permit expires unless it is renewed), the non-conforming use will have run its course, and the RR designation will apply to all future activities on the larger parcel. Although the entire B & H parcel was classified as RR, the borrow pit and C & D landfill are non-conforming uses under the County's Plan, presumably having been in existence before the County's Plan was adopted. A non-conforming use is one where the actual use of the property is not consistent with the future land use of the comprehensive plan or not consistent with the zoning of the property. There are very strict parameters as to whether or not you can change or modify a non-conforming use. Normally, changes to non-conforming uses are not allowed. A non-conforming use can not be expanded. B & H has acknowledged that it intends to seek annexation of the entire larger parcel into the City. With the exception of the C & D landfill, it is also planning to request a FLUM amendment from RR to IN for the remainder of the larger parcel. Thus, if the instant application is approved, it is fair to say that this action will be the forerunner of an effort to reclassify the entire 75.56 acres (except the 7.5-acre landfill) as industrial property, leaving only the 70-foot strip of Enzor property as a RR buffer between the industrial land and the subdivision. Petitioner's Objections Ten-Acre Maximum Petitioner's first objection is that the amendment does not meet the statutory criteria for a small-scale development amendment because the use involves more than 10 acres. See § 163.3187(1)(c)1., Fla. Stat. ("[t]he proposed amendment [must involve] a use of 10 acres or fewer"). Petitioner argues that parcel size is not the only determinant of what must be included in the amendment, and that any acreage that is integral to the design and operation of the proposed use is considered in determining whether the small scale development amendment criteria are met. Petitioner argues that B & H failed to include in the amendment all acreage that is integral to the design and operation of the proposed use. It is undisputed that the subject parcel is 9.98 acres, as determined by Kermit George, who sealed the property's survey for B & H, and as confirmed by City employee Teresa Gaillard by using the Autocad software program. Relying primarily upon site plans for the concrete batch plant filed by B & H with the City, however, Petitioner contends that the acreage (.0604 acres) related to a 66-foot driveway which will access the south side of the property from Borrow Pit Road, the acreage (1.607 acres) related to the use of Borrow Pit Road after turning off of Point Center Road, the acreage (.052 acres) for an easement necessary to run a County water line from B & H's southern property line to the smaller parcel, and the 150-foot buffer on the east side of the site (which will be required by the City when or if a concrete batch plant is permitted and built) must be included in the total amount of acreage. Excluding the buffer, Petitioner has calculated this additional land to total 1.7194 acres. Petitioner argues that even if only one of the above items is included, it would cause the size of the amendment to exceed ten acres and lose its status as a small-scale development amendment. It is fair to infer from the evidence that the dirt trail that makes up Borrow Pit Road, as well as the 66-foot trail from Borrow Pit Road to the subject property, are already being used by B & H trucks or other vehicles to access the landfill and borrow pit area. Therefore, this "infrastructure" will be used for other purposes, irrespective of whether development on the 9.98-acre parcel occurs. At the same time, the City's planning expert noted that good planning practices do not require that the land necessary to access a parcel with roads or utilities, and off-site buffering, be included in calculating whether the "use" of the parcel exceeds 10 acres. Except as to the buffering issue, this interpretation of the statutory language is more logical and reasonable than Petitioner's approach and is hereby accepted. Compare Parker v. St. Johns County et al., DOAH Case No. 02-2658, 2003 Fla. ENV LEXIS 34 at *12 (DOAH Dec. 17, 2002, DCA Feb. 27, 2003)("[i]t would be unreasonable to construe Section 163.3187(1)(c)1., Florida Statutes, as requiring local governments and applicants to calculate pro rata share impacts of off-site utilities, determine proportionate acreage based on those impacts, and apply those figures to the small scale acreage calculations"). The issue of whether the acreage related to the off- site buffering should be included as a use is not so clear cut. The City Land Development Code (LDC) requires that there be appropriate buffering between industrial and residential land uses. While the pertinent portion of the LDC is not of record, the evidence submitted by B & H and the City shows that an approximate 150-foot buffer will be necessary on the eastern side of the parcel. A City witness testified that the buffering "would normally take place upon the property being developed." However, because the use will occur in an existing borrow pit (which is 20 feet below the surface of the adjacent land), the City concluded that it would be more appropriate to place any required vegetative buffer and fencing off-site on the edge of the larger parcel, also owned by B & H. The buffering is an integral part of the project being placed on the parcel. In other words, the plant cannot be built without the required buffering. Therefore, the land on which the buffer and fence will be placed should be included as an integral part of the property's use. Compare St. George Plantation Owners' Association, Inc. v. Franklin County et al., DOAH Case No. 96- 5124GM, 1997 Fla. ENV LEXIS 37 at *18-20 (DOAH Feb. 16, 1997, Admin. Comm. Mar. 25, 1997) where three off-site absorption beds required to serve a wastewater treatment plant were considered an integral part of the facility, thereby increasing the size of the amendment's "use" from 9.6 to 14.6 acres. By adding the acreage for the 150-foot off-site buffer and fencing to the 9.98 acres, the use of the property that is the subject of the amendment clearly involves more than 10 acres and cannot qualify as a small-scale development amendment. Data and Analysis Petitioner also objects to the amendment as not being supported by relevant and appropriate data and analysis, as required by Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2). Paragraph (2)(a) of the rule requires that "plan amendments . . . shall be based upon relevant and appropriate data and the analyses applicable to each element." To be based on data "means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the . . . plan amendment at issue." Id. Petitioner points out that B & H has acknowledged (by way of answers to Requests for Admissions and stipulated facts in its Motion in Limine) that it did not present to the City any studies or data related to noise, traffic, property values, air pollution, or protected natural resources that may be impacted by, or attributable to, a concrete batch plant being placed on the subject property. She also argues that to the extent an analysis was made in the City's staff report (as to infrastructure demands, protection of wetlands and natural resources, traffic, financial feasibility, and compatibility), it was based on incorrect data or was otherwise insufficient. The City's planning consultant prepared the staff report for the City, which summarizes the data and analysis supporting the amendment. See § 1, Joint Exhibit E, which is a six and one-half page staff report. The analysis was performed on the premise that a concrete batch plant would be located on the subject property. The staff report indicates that "[t]he purpose of the amendment is to provide for the development of a concrete batch plant." See page 1, § 1, Joint Exhibit E. The staff report contains in summary form the data and analysis supporting the amendment. Section 1 reflects that the City relied upon (a) FLUM map sheet 7-5, which indicated that all adjacent lands except I-10 on the north side are in the RR land use category while lands in the vicinity are classified as LDR, MDR, Conservation, Public Lands, Industrial, and Commercial; (b) data reflecting that the existing use of land on the subject property is vacant and undeveloped; the larger B & H parcel contains a C & D landfill and is otherwise vacant; adjacent properties include numerous single-family homes and subdivisions, existing and planned multi-family projects, planned commercial uses, and a school; and wetlands are located in the northwest corner of the subject property; (c) data showing that the type of development on the property will be a concrete batch plant; (d) data showing that the amendment will "result in a significant decrease in potential demands on all City infrastructure systems" (potable water, sewer, solid waste, recreation/open space, drainage, and traffic) because it will eliminate potential future demands for residential units that would otherwise be allowed on the RR property; (e) data reflecting that the change in land use is compatible and suitable with adjacent lands because the proposed facility is "not adjacent to any homes, schools or other similar uses," and the adjacent properties are owned by B & H; (f) data showing that the site is generally level with an average elevation of 100 feet; (g) data in the Soil Survey of Okaloosa County, Florida indicating that the soil "is suited for the planned use and development of the subject property"; (h) data reflecting that there is "a small area with wetland soils" in the northwest corner of the property which will not be developed; and (i) data indicating that there are no historic and archeological resources on the property. The consultant also reviewed the current Plan to determine if the plan amendment was consistent with all relevant provisions and concluded that the "amendment is consistent with and furthers the adopted Comprehensive Plan." He added that at the same time the small-scale amendment was being considered, the City was also considering a set of large-scale amendments to its Plan (presumably to the FLUM), and the data and analysis used for those amendments provide further support for the amendment being challenged. However, the nature of the large- scale amendments, and their underlying data and analysis, are not of record or otherwise identified. Finally, the City did not perform a concurrency analysis since it says that the Department no longer requires one at the amendment stage and instead defers that task until the development process begins. Whether the City specifically considered the concerns noted in the County's staff report recommending a denial of the land use change is not clear. However, the staff report discounted the notion that the amendment would encourage urban sprawl (or "spot zoning" in the words of the County staff report) since it promotes urban infill development. In response to a criticism by Petitioner, at hearing the City's consultant utilized further data from City sources, presumably available at the time the amendment was adopted, which indicate that the total available capacity for new customer usage from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the water requirements related to the proposed industrial usage. Without providing specifics, the consultant also opined that if the County is called upon to provide water to the site, as B & H now intends, it likewise has sufficient capacity to do so. In analyzing the impacts on infrastructure, the City assumed that a change from RR to IN, and the placement of a concrete batch plant on the property, would "result in a significant decrease in potential demands on all City infrastructure systems." The more persuasive evidence shows, however, that when comparing the new traffic that would be generated by potential residential units on the property versus a concrete batch plan, the latter would probably generate an increase of at least 110 vehicle trips per day, most by heavy trucks, which is more than five times the number of trips used in the City's analysis. In contrast, the staff report stated that the projected demands from development of the plant "[i]n theory, [could result in] up to 20 trucks trips per day" but this high a number was "not likely." In this respect, the data being used and analyzed were not correct or were incomplete, and the City's assumptions drawn from that data were flawed. Thus, as to these impacts, the amendment is not supported by adequate data and analysis. Although the staff report also failed to reflect the increased water usage that would be generated by the concrete batch plant, at hearing the City relied upon available data to show that both the City and County had sufficient capacity to provide water service for the plant. To a certain degree, compatibility and suitability overlap one another. "Compatibility" is defined in Florida Administrative Code Rule 9J-5.003(23) as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." This criterion is used to evaluate whether the proposed industrial land use is compatible with the uses on nearby or adjacent properties. On the other hand, subsection (128) of the rule defines "suitability" as "the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development." This criterion requires a determination of whether the industrial land use category is suitable in this particular area, given the existing characteristics of the land. After reviewing and analyzing data on the issue of suitability and compatibility, the City concluded that because B & H owned all the lands around the site (except on the northern boundary which adjoined I-10), "adverse issues [not otherwise identified in the report] associated with compatibility should be minimized." To further support its finding of suitability and compatibility, the report went on to state that the subject property "is not adjacent to any homes, schools or other similar uses." While the data used by the City (such as the FLUM map) were adequate, the City did not react to it in an appropriate manner. The City is correct in concluding that a change to an industrial land use category may be suitable on land where a non-conforming borrow pit already exists. However, because the proposed industrial use is in "relative proximity" to rural residential land on three of its sides, a large residential subdivision that begins no more than 200 yards away, an access road used by numerous heavy trucks which lies only 140 feet south of the subdivision, and a single outlet for all traffic exiting the subdivision, school, and B & H property, it is fair to infer that there will be a direct or indirect negative impact on those adjacent or nearby uses in contravention of Florida Administrative Code Rule 9J-5.003(123). In this respect, the amendment is not supported by adequate data and analysis. The City's recognition of the wetlands area on the subject property, and its finding in the report that such lands would be protected if development occurs, constitutes sufficient data and analysis and appropriate reaction thereto to satisfy the statute and rule. Petitioner also contends there was no analysis related to the fact that Point Center Road, the private road used to access the parcel, crosses wetlands "at the bottom of the hills," and the wetlands will be impacted by the change. As pointed out at hearing, however, the road has been there "forever," and filling of the adjacent wetlands occurred many years ago, or long before B & H acquired the property. Other than paving the road if the land change is approved, no other "filling" will occur, and the City's assessment of this matter was sufficient. All other contentions by Petitioner regarding the lack of sufficient data and analysis to support the amendment have been considered and rejected. Financial Feasibility Section 163.3177(2), Florida Statutes, requires that "the comprehensive plan shall be financially feasible." Relying upon this statute, Petitioner contends that the City failed to analyze whether the amendment was financially feasible. According to Petitioner's expert, when a FLUM change is made, a financial feasibility analysis must be made, which requires that the local government make a facility-based analysis to demonstrate whether the local government has sufficient capacity for the change. Specifically, she argues that there is no commitment from the County to provide water, and that the City did not analyze whether the City or County has the capacity to provide sufficient water to serve a concrete batch plant. Although the staff report addresses this issue in summary fashion and without specifics, at hearing the City's planning consultant testified, without contradiction, that the total available capacity from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the potential water requirements of a concrete batch plant on the site. He also opined, without contradiction, that if the County is called upon to provide the water, it likewise has sufficient capacity to do so. Based upon this analysis of available data, it is found that financial feasibility was adequately addressed by the city. Intergovernmental Coordination Petitioner next contends that the City did not evaluate and coordinate the amendment with the County, as required by Section 163.3177(4)(a), Florida Statutes, Florida Administrative Code Rule 9J-5.015, and the Intergovernmental Coordination Element (ICE) of the City's Plan. The statute provides in part that "[c]oordination of the local comprehensive plan with the comprehensive plans of . . . the county . . . shall be a major objective of the comprehensive planning process." The two most relevant provisions in the Plan on this subject, both very general in nature, are ICE Goal 13.A., which states that a goal of the Plan is to "[p]rovide coordination of this plan (ordinance) with Okaloosa County, other local governments (as appropriate) and other governmental agencies providing services within the City[,]" and ICE Objective 13.A.1., which provides that the City shall "review, on an annual basis, actions that have taken place to coordinate the Comprehensive Plan of Crestview with the Plans of other units of government and the Okaloosa County School Board." Although the County was given constructive notice of B & H's annexation request through the publication of a notice in a local newspaper on July 7, 2007, there is no evidence that the County was given specific notice that an application for a change in the FLUM had been filed by B & H and was being processed by the City, or that the County was afforded an opportunity to provide input into that process, if it chose to do so. Given the unique circumstances here, coordination is especially important since the subject property is surrounded on three sides by County land designated as RR with Agricultural zoning, the requested change would create a small industrial pocket in the middle of County RR land, and the County staff had just prepared a report recommending denial of the same change before the City annexed the property. While the cited statute, rule, and Plan provisions clearly do not contemplate that adjacent local governments have veto power over the City's ability to enact plan amendments, or that the City is required to accept alternative suggestions proposed by other entities, at a minimum they contemplate that notice of changes be given to adjacent local governments, and that those local governments be afforded the right to offer input, if any, prior to consideration of the amendment. See, e.g., City of West Palm Beach et al. v. Department of Community Affairs et al., DOAH Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM, 2005 Fla. ENV LEXIS 192 at *34-35 (DOAH July 18, 2005, DCA Oct. 21, 2005). Because there was no coordination here, even minimal, the adoption of the plan amendment contravened the cited statute, rule, and ICE Goal 13.A. Internal Consistency Petitioner next argues that, contrary to the requirement in Section 163.3187(2), Florida Statutes, that there be "internal consistency" within a plan, the amendment is inconsistent with the Plan in the following respects: quality of life (Legal Element Section 1.04); compatibility (FLUE Policy 7.A.1.2.c.); school siting (FLUE Policy 7.A.9.1.); and wetlands impacts (Conservation Element Goal 11.A and Objective 11.A.2.). Petitioner first contends that the amendment is inconsistent with the stated general intent and purpose of the Plan, which is found in Section 1.04 of the Plan's Legal Element. That Element contains a "whereas" clause, the Plan's title, jurisdiction for adopting the Plan, the City Council's intent in adopting the Plan, and its effective date. The Element indicates that it is intended to implement Florida Administrative Code Rule 9J-5.001, which sets forth the broad purposes of Florida Administrative Code Rule Chapter 9J-5. Section 1.04 provides in relevant part that the Plan is intended to "maintain and improve the quality of life for all citizens of the City" and to protect and promote the "public health, safety and general welfare of its citizens." This salutary language is so broad and aspirational in nature that the undersigned does not construe it, or other provisions in the Legal Element, as an appropriate basis for finding an amendment not in compliance. Petitioner's argument is accordingly rejected. Petitioner also argues that the amendment is inconsistent with the Plan's requirement that compatibility of adjacent land uses be ensured. FLUE Policy 7.A.1.2.c. appears to be the only Plan provision specifically dealing with this issue and it provides that the LDC shall contain detailed provisions to "ensure compatibility of adjacent land uses." B & H and the City take the position that during the zoning and development phase of the process (rather than during the plan amendment stage) the LDC would be used to ensure compatibility, as required by the Plan. However, the issue of compatibility was analyzed by the City and presented to the City Council, and the staff report contains an entire section on compatibility and suitability. See Finding of Fact 30, supra; § 1, pages 3-4, Joint Exhibit E. Therefore, it is appropriate to consider at the plan amendment stage whether the change in land use is compatible with adjacent or nearby properties. As noted earlier, Antioch Estates is a low-density residential subdivision directly to the east of the B & H parcel. At its closest point, the subject property is around 200 yards from the subdivision. The distance from the subdivision to the proposed concrete batch plant is less than a quarter-mile. At the same time, the road over which the heavy trucks will travel to and from the industrial site is no more than 140 feet south of the southern boundary of the subdivision, and the connecting road eventually terminates at an outlet onto Antioch Road shared by traffic from the subdivision and school. Finally, B & H acknowledges that the proposed change here is a precursor to a request for annexation of the larger parcel into the City and a change in the land use on the larger parcel (except for the land fill) to industrial. This would leave the Enzor property (which is only 70 feet wide) as the sole remaining RR buffer with Antioch Estates. Given these considerations, the change in land use will not "[e]nsure compatibility of adjacent land uses," as required by FLUE Policy 7.A.1.2. Finally, Petitioner contends that the amendment is inconsistent with FLUE Policy 7.A.9.1.1., which provides that a "proposed school location shall be compatible with existing and projected uses of adjacent property." (Emphasis added). Since the Antioch Elementary School already exists, it appears that this provision has no application. For the same reason, Petitioner's contention that the amendment contravenes Section 1013.36(3), Florida Statutes, is also rejected. That statute requires that a new school should not be sited adjacent to factories or other properties from which noise, odors, or other disturbances would be likely to interfere with the educational program. While compatibility issues with existing schools are relevant when a map change is being made, they can only be considered in the context of Plan provisions which directly apply to those issues. Summary In summary, because the amendment involves a use of more than 10 acres, it does not meet the criteria in Section 163.3187(1)(c)1., Florida Statutes; the amendment is not supported by adequate data and analysis with respect to impacts on infrastructure (traffic) and compatibility; the amendment contravenes the statutory, rule, and Plan requirement that it be coordinated with other local governments; and it is internally inconsistent with FLUE Policy 7.A.1.2.c., which requires compatibility of adjacent uses. All other contentions raised by Petitioner have been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small-scale development amendment adopted by the City by Ordinance No. 1370 on November 26, 2007, is not in compliance. DONE AND ENTERED this 21st day of April, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2008.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The parties Respondent, Marion County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioner, William B. Hunt, owns property and resides within the County. Petitioner also submitted written comments to the County during the public hearing held on April 7, 1994, concerning the adoption of an amendment to the County's comprehensive plan. Therefore, he is an affected person within the meaning of the law and has standing to bring this action. The nature of the dispute In July 1991, the County initially transmitted its proposed comprehensive land use plan to the DCA. The DCA issued an Objections, Recommendations, and Comments (ORC) report for the County's plan on October 18, 1991. The County issued a response to the DCA's ORC report and adopted its comprehensive plan in January 1992. In April 1992, the DCA issued a notice of intent to find the comprehensive plan not in compliance. In an attempt to bring the County's plan into compliance, the DCA and County entered into a settlement agreement in March 1993. Pursuant to the agreement, the County was supposed to adopt certain remedial amendments to its comprehensive plan. In August 1993, the County adopted remedial amendments to its comprehensive plan. In October 1993, the DCA issued a notice of intent to find the remedial amendments not in compliance. In another attempt to bring the County's plan into compliance, the DCA and County entered into another settlement agreement in February 1994, and into an addendum thereto in April 1994. Pursuant to this agreement, the County adopted the agreed-upon remedial amendments to its comprehensive plan by Ordinance No. 94-12 on April 7, 1994. On May 30, 1994, the DCA issued a cumulative notice of intent to find the County's comprehensive plan and remedial amendments in compliance. On June 18, 1994, petitioner filed a petition to intervene with the Division of Administrative Hearings seeking to challenge the newly amended plan. After being advised that the petition was filed in the wrong forum, and that he incorrectly sought to intervene rather than to initiate a new proceeding, on December 13, 1994, petitioner filed a petition for an administrative hearing with the DCA. In his lengthy petition, which contains allegations running some fifty-four pages in length, petitioner has challenged the County's plan, as amended, in numerous respects. In his proposed order, however, petitioner has summarized his complaints into the following categories: (a) "many" of the plan objectives are not "specific or measurable," (b) "many" policies in the plan are not "adequate," (c) "many" of the required objectives and policies are not found within a particular element, (d) "many" policies in the plan defer implementation to the land development regulations, or to other kinds of regulations, that are to be adopted after the plan is adopted, (e) "publications" adopted by reference in the plan "have not been adequately cited," (f) "the plan does not control growth," and it "designates an over- allocation of land that can be developed at non-rural densities and intensities," (g) the plan violates the concurrency provision on State Road 200, and (h) the plan fails to include an analysis of projected mass transit level of service and system needs. Is the Plan, as Amended, in Compliance? Generally In attempting to prove the allegations in his petition, petitioner offered only the testimony of a DCA land use planning manager and the County's acting planning director, both of whom concluded that the plan, as amended, was in compliance. Because both witnesses generally refuted all allegations raised in the petition, and they disagreed with the theories advanced by petitioner through his direct examination, the record in this case clearly supports a finding that the plan, as amended, is in compliance. Notwithstanding this state of the record, the undersigned will address in general terms the broad issues raised in the petition, namely, the adequacy of the plan's supporting data and analysis, the adequacy of the goals, objectives and policies, the plan's internal consistency, and the plan's consistency with the state comprehensive plan. In addition, the undersigned will address the more specific objections raised by petitioner in his proposed recommended order. Adequate data and analyses Petitioner has alleged that the County's plan, as amended, is not in compliance because ten elements were not supported by adequate data and analyses, as required by Chapter 9J-5, Florida Administrative Code. However, petitioner either abandoned these allegations or failed to prove them to the exclusion of fair debate. Goals, objectives and policies Petitioner further alleged that the County's plan, as amended, is not in compliance because a number of the goals, objectives and policies (GOPs) contained in the various elements were inadequate in that they did not meet some of the requirements for GOPs in Chapter 9J-5, Florida Administrative Code. However, petitioner either abandoned these allegations or failed to prove them to the exclusion of fair debate. Internal consistency of plan Petitioner next alleged that the County's plan, as amended, is not in compliance because the internal consistency requirements in Chapter 9J-5, Florida Administrative Code, had not been met. Based on the findings of fact above, however, it is clear that the evidence failed to show to the exclusion of fair debate that the County's plan contained GOPs that were in conflict with each other, thereby rendering the plan internally inconsistent. Consistency with state comprehensive plan Petitioner has also alleged that the County's plan, as amended, is not in compliance because it is not compatible with, and does not further, a number of goals and policies of the State Comprehensive Plan, which are contained in Section 187.201, Florida Statutes. Petitioner failed to present any evidence showing that the County's plan, as amended, is not compatible with, and does not further, the State Comprehensive Plan. Other objections Petitioner has alleged in his proposed recommended order that some of the objectives and policies used by the County do not conform to the definition of those terms in Rule 9J-5.003, Florida Administrative Code. However, the evidence established that those definitions are not mandatory, they merely provide clarification for the local government, and the local government is free to use other definitions in its plan so long as they generally conform with the codified definition. Since the challenged objectives and policies generally conform with the above rule, and they provide the means for their achievement, they are found to be in compliance. Petitioner also alleges that some elements in the plan lack certain policies and objectives required by chapter 9J-5 and thus are deficient. The more persuasive evidence shows, however, that each of the challenged elements was adequate in terms of containing the necessary policies and objectives, and thus the requirements of chapter 9J-5 have been satisfied. Petitioner next alleges that many of the policies in the plan defer implementation to the land development regulations (LDRs) or other regulations that will not be adopted until after this plan becomes effective. Contrary to petitioner's assertion, however, some of the policies do not defer to the LDRs. In cases where they do, the LDRs must still be adopted in accordance with strict time limitations established by Chapter 163, Florida Statutes, and thus the necessary guidance in the plan is not lacking. Petitioner further contends that "publications" adopted by reference in the plan "have not been adequately cited." He specifically refers to policy 1.5 of the Traffic Circulation Element which adopts by reference, and without specific citation to a page number, a manual entitled Institute of Traffic Engineers Trip Generation. Through testimony of witness Manning, however, it was established that it is impractical and unnecessary for the local government to cite specific page numbers of the manual in the plan itself. Indeed, reference to the title of the manual is sufficient. Therefore, those provisions of the plan which incorporate by reference other publications without detailed citations are found to be in compliance. Petitioner has also complained that the plan does not control growth, and it over allocates land to non-rural purposes. In this regard, the County's future allocation of land use was made through the use of a multiplier, which is a planning technique for assessing future land use needs. This technique, and the accompanying calculations, were not shown to be unreasonable or to produce inappropriate results. It was further established that, in making its projections, the County exceeded the requirements of chapter 163. Indeed, in the words of a DCA planner, the County made one of the "most honest assessments of development of any plan in the state." Petitioner next asserts that policy 2.1 of the Traffic Circulation Element allows a 20 percent degradation to the existing level of service for two segments on State Road 200, and thus it "violates the concurrency provision of the act and Rule 9J-5." While the level of service for roads must be consistent with Department of Transportation standards to the maximum extent possible, if it cannot meet them, the local government may show justification for deviation from those standards. In this case, the County presented justification for deviating from those standards by 20 percent on State Road 200 as authorized by Rules 9J-5.0055(1)(d) and 9J-5.007(2)(b), Florida Administrative Code. Therefore, the questioned policy is deemed to be in compliance. Finally, petitioner alleges that the plan fails to include an analysis of projected mass transit level of service and system needs. Admittedly, such an analysis is not found in the plan. However, this is because the County does not operate a public mass transit system. In circumstances such as these, the County is required by chapter 163 to have a mass transit element in its plan, but it is not required to adopt an objective on this subject. Therefore, the absence of such an analysis does not render the plan not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Marion County's comprehensive plan, as amended by Ordinance No. 94-12, is in compliance. DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-7071GM Petitioner: 1. Partially accepted in finding of fact 2. 2-3. Partially accepted in finding of fact 1. 4a.-4c. Partially accepted in finding of fact 14. 4d. Partially accepted in finding of fact 15. 4e. Partially accepted in finding of fact 16. 4f. Partially accepted in finding of fact 17. 4g. Partially accepted in finding of fact 18. 5. Partially accepted in finding of fact 19. 6. Partially accepted in finding of fact 20. 7-9. Covered in conclusions of law. Respondents: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 6. 7. Partially accepted in finding of fact 7. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 10. 10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 13. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: William B. Hunt 3531 S. E. 30th Terrace Ocala, Florida 34471 Gordon B. Johnston, Esquire 601 S. E. 25th Avenue Ocala, Florida 34471-2690 Brigette A. Ffolkes, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether Marion County's small- scale comprehensive plan amendment 01-S27 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001). Specifically, Petitioners contend that the amendment is: (1) inconsistent with goals, objectives, and policies of the County's Comprehensive Plan--specifically, Future Land Use Element (FLUE) Objectives 1 and 2, and Policies 2.7 and 2.8; and (2) inconsistent with Florida Administrative Code Rule 9J- 5.006(5), which requires that proliferation of urban sprawl be discouraged. (Other contentions are inapplicable. See Conclusions of Law, infra.)
Findings Of Fact Petitioners all reside in the Sherman Oaks subdivision in Marion County, Florida. Sherman Oaks is adjacent to and northwest of the parcel which is the subject of the County's small-scale comprehensive plan amendment 01- S27 (Plan Amendment). This "Amendment Parcel" consists of 2.375 acres located at the northwest corner of the intersection of State Road 40 (oriented east-west at that location) and NW 80th Avenue (oriented north-south at that location) (the Intersection) near Ocala, Florida. The Plan Amendment changes the land use designation for the Amendment Parcel from Urban Reserve to Commercial. Pertinent History of the County's Comprehensive Plan. The County originally adopted its Comprehensive Plan in January 1992. Because of an objection by the Department of Community Affairs (DCA) that the original Comprehensive Plan allocated too much land area to the Urban area, the County adopted remedial amendments on April 7, 1994, which added a new land use classification, Urban Reserve. The Comprehensive Plan defines the Urban Reserve land use classification as follows: This classification provides for the expansion of an urban service area or an urban expansion area in a timely manner. The underlying land uses in this classification shall be those of the rural lands until, through the Plan Amendment process, these areas are designated as Urban Expansion Area or Urban Service Area on the Future Land Map series. Commercial land use designation falls within the generalized Urban Area category in the County's Comprehensive Plan. From the date of the adoption of remedial amendments in 1994 through this date the Amendment Parcel has had a land use designation of Urban Reserve. The Amendment Parcel is part of a larger parcel of land designated Urban Reserve which extends for approximately a mile to the west of the Amendment Parcel, half a mile to the south of the Amendment Parcel, and greater than two miles to the north of the Amendment Parcel. (There also is some Medium Density Residential, which falls with the generalized Urban Area land use category, approximately two miles north of the Amendment Parcel; this is a major residential development called Golden Ocala). All of the property on the east side of the Intersection for approximately half a mile on either side of State Road 40 has had a land use designation of Urban Expansion, which allows urban and commercial uses, since 1992. Marion County has extensive areas in the western half of the County designated as Rural Land. Approximately a mile west of the Amendment Parcel, the property along the north and south sides of State Road 40 changes land use designation from Urban Reserve to Rural Land. Prior to adoption of the County’s Comprehensive Plan in 1992, the Amendment Parcel had a general retail zoning classification of B-2 (Community Business), which has remained in place since the date of the Comprehensive Plan adoption. The Plan Amendment would allow the Intervenor to make immediate use of the Amendment Parcel under its existing zoning classification of Community Business. The County’s Comprehensive Plan also contains a land use classification of Rural Activity Center (RAC) for existing commercial nodes in the Rural Land area. According to the definition in the Comprehensive Plan, this classification: provides for the utilization of mixed-use areas and the infilling of those areas under appropriate circumstances. Rural Activity Centers provide for a nodal-type development pattern. When the Comprehensive Plan was originally adopted in 1992, the County identified a number of RACs and included them on the Future Land Use Map in the Comprehensive Plan. The Intersection was not made a RAC in 1992 because it was surrounded by Urban Expansion lands that were changed to Urban Reserve in 1994. Otherwise, it probably would have been designated a RAC because there already was commercial development on the east side of the Intersection in 1992. Designation as a RAC would have allowed Intervenor to make use of its B-2 (Community Business) zoning classification from 1992 forward. The evidence was not clear why Castro's Corner at the intersection of U.S. Highway 27 and County Road 225A was designated a RAC. It is not now surrounded by Rural Lands; however, from the evidence presented, it is possible that Castro's Corner was surrounded by Rural Lands at the time it was designated a RAC. Pertinent History of the Amendment Parcel In light of the see-saw history of decision-making on applications for comprehensive plan amendments affecting the Amendment Parcel since 1998, it is not surprising that Petitioners are perplexed by this Plan Amendment. In 1998 application was made to change the land use designation from Urban Reserve to Commercial on a parcel that included the Amendment Parcel and approximately seven additional acres lying immediately to the west of the Amendment Parcel, for a total of 9.9 acres, with the entire application parcel having frontage on State Road 40. The County's Planning Department recommended approval of the land use amendment. Staff's report stated that the proposed Commercial land use designation would "continue the formation of a commercial node at the intersection . . . consistent with FLUE Policy 2.7"; would "coordinate development with sufficient roadway capacity and access management procedures, and available water and sanitary sewer facilities as required by FLUE Policy 2.8"; was "compatible with the existing commercial uses on the east side of the intersection"; and was "generally compatible with the areas's [sic] topography, soils and environmental features." Staff's report concluded that the recommendation for approval was based on findings that the request would "not adversely affect the public interest"; was "consistent with the identified objectives and policies in the Marion County Comprehensive Plan"; and was "compatible with the surrounding land uses." The County's Planning Commission agreed with planning staff's recommendation and voted 7-0 for approval, but the County Commission denied the application. In 2000 the Amendment Parcel was included in another application for a land use designation change from Urban Reserve to Commercial on 13.88 acres in the northwest quadrant of the Intersection. This time, the Planning Department recommended denial. As to compatibility with the goals, objectives, and policies of the County's Comprehensive Plan, staff's recommendation was based on findings that the proposed amendment was "not compact and contiguous to the Urban Area (FLUE Policy 2.18)"; did "not preserves [sic] the county's rural areas while allowing the provision of basic services by directing growth to existing urban areas and commercial nodes (FLUE Objective 3.0)"; "does not coordinate development with availability of public facilities such as centralized potable water and sanitary sewage facilities (FLUE Policy 2.18)"; "does not promote the efficient use of resources and discourage scattered development and sprawl because it is not located in an area of increasing urban residential development and commercial development (FLUE Policy 2.7)"; and "does not encourage development that is functional and compatible with the existing land uses adjacent and in the surrounding area (FLUE Policy 1.21)." As to consistency with Florida Administrative Code Rule 9J-5 urban sprawl indicators, staff found that the proposed amendment "promote[d] the development of low-intensity, low-density, or single use development"; "promote[d] urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban development"; did "not protect adjacent agricultural areas and activities"; allowed "for land use patterns or timing which disproportionately increases the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education health care, fire and emergency response, and general government"; did "not encourage development which would, by it's [sic] location, provide a clear separation between rural and urban uses"; did "not encourage an attractive and functional mix of uses"; and "encourage[d] development which would result in the loss of significant amounts of open space." The report concluded that it was based on findings that "[g]ranting the amendment will adversely affect the public interest"; the "proposed amendment is not compatible with land uses in the surrounding area"; and "[g]ranting the amendment is not consistent with Chapter 163, Florida Statutes, Rule 9J-5, F.A.C., and the Marion County Comprehensive Plan." The Planning Commission voted 6-1 to recommend denial. The application was withdrawn prior to the transmittal hearing before the County Commission. In August 2001, Intervenor submitted an application to change the land use on the property it owns at the Intersection (containing 2.85 acres) from Urban Reserve Area to Commercial. The southern boundary of the original application parcel consisted of 275 feet of frontage on the north side of State Road 40. The eastern boundary of the original application parcel fronted on NW 80th Avenue, with 459 feet of frontage. The County's Planning Department recommended that Intervenor's application be denied. The stated basis for the recommendation was that the proposed plan amendment represented "an extension of urban type land use into the rural area" and that "[d]evelopment of the property as commercial was not compatible with adjacent land uses." Planning staff took the position that the proposed Commercial land use designation did "not encourage compact, contiguous development (FLUE Objective 2)"; did "not preserve the County's rural character (FLUE Policy 2.7)"; did "not coordinate development with sufficient roadway capacity (FLUE Policy 2.8)"; and was "not compatible with the existing adjacent uses (FLUE Objective 1)." Staff also took the position that the proposed Commercial land use designation application would "promote urban sprawl as specified in the Urban Sprawl Rule 9J-5.006(5)(g)" because it was "not compatible with surrounding land use designations"; "discourage[d] a functional mix of uses"; and "discourage[d] [sic?] a land use pattern that disproportionately increases local government's fiscal burden of providing necessary public services." In conclusion, staff based its recommendation on findings that the application would "adversely affect the public interest"; was "not consistent with the identified objectives and policies in the Marion County Comprehensive Plan"; and was "not compatible with the surrounding land uses." The Planning Commission heard Intervenor's presentation and comments from objecting property owners, including Petitioners, and voted 4-3 to deny the application. At a public hearing conducted on December 11, 2001, the County Commission heard Intervenor's presentation and comments from objecting property owners, including Petitioners. During the hearing, at the suggestion of the Commission, Intervenor agreed to amend the application to reduce the total amount of property for which the land use change was requested from the original entire parcel of 2.85 acres to a smaller 2.375 acre parcel (now the Amendment Parcel). The purpose of the reduction in the size of the Amendment Parcel was to exclude a heavily treed area on the north boundary of the original application parcel to create a buffer for residential property owners residing to the north and northwest of the Amendment Parcel. Intervenor also agreed to allow parallel access across the back (north) of the Amendment Parcel to the property fronting State Road 40 to the west, in the event of future development of those properties. After amendment of the application, the County Commission voted 5-0 to approve. Amendment Parcel Characteristics and Surroundings. Both State Road 40 and 80th Avenue in the area of the Intersection are heavily traveled and frequently congested. The Intersection is signalized, and traffic backs up for long distances during busy times when the light is red. The Amendment Parcel and the land to the west between State Road 40 and Sherman Oaks to the north is vacant. The property in the northeast quadrant of the Intersection has a land use designation of Urban Expansion, which allows commercial usage. The property in this quadrant of the Intersection is already commercially developed. There is a combination convenience store/restaurant building at the immediate Intersection. To the north of that parcel along 80th Avenue is Golden Hills Mobile Home Park and the sewage treatment facility serving the mobile home park. The southeast quadrant of the Intersection also has an Urban Expansion land use designation and is also already commercially developed. A prior convenience/general store at the immediate southeast corner of the Intersection has been torn down, and a temporary fruit stand currently occupies the immediate corner. This quadrant of the Intersection also includes a two-story building with retail businesses on the first floor. The property in the southwest quadrant of the Intersection, lying immediately to the south of the Amendment Parcel, has an Urban Reserve land use designation but is currently used as part of an operating horse farm. While it may not completely explain the swings in the decision-making of the County's planning staff, the County Planning Commission, and the County Commission with respect to northwest quadrant of the Intersection, the evidence was that traffic on both State Road 40 and 80th Avenue increased substantially in the five years preceding the County Commission's decision to approve Intervenor's amended application. During this time period, 80th Avenue to the south of the Intersection was extended farther southward to State Road 200, which was widened to six lanes during the same time period. In addition, the Marion County school system constructed a combination high school/middle school on SW 80th Avenue approximately two to three miles south of the Intersection, generating additional traffic. As a result of these changes (together with general growth in the County), 80th Avenue has become a major north/south corridor road in western Marion County, both to the north and to the south of State Road 40. In addition, there was discussion at the County Commission hearing on the Plan Amendment about the initiation by the Florida Department of Transportation (FDOT) of a four- laning road improvement project on State Road 40, including at the Intersection and to the east and west of this Intersection. It was represented that, while the project was not within FDOT's three-year work program, FDOT was in the process of acquiring large parcels for needed drainage retention areas for the project, including a parcel to the west of the Amendment Parcel and a parcel encompassing most of the southeast corner of the Intersection. At final hearing in this case, written communications from FDOT regarding the project confirmed that FDOT had initiated the process of design and right-of-way acquisition for the project but did not have a finalized project time line. A preliminary project time line prepared by FDOT showed construction more than two years away, but the time line also established that the FDOT four-laning project on State Road 40 is underway. The prospect of four-laning State Road 40 played a part in the County Commission's thinking that the timing was right to change the land use designation of the Amendment Parcel to Commercial. Intervenor's Alleged Inaccurate Representations The County's application form cautions applicants that false statements on the application could result in denial. However, it was not proven that denial is mandatory in the case of any inaccuracy. Rather, the evidence was that information in the application can be corrected and supplemented during the review process. Intervenor's application contained inaccurate representations as to the proximity of some public facilities in relation to the Amendment Parcel. Petitioners made no attempt to prove the significance of those inaccuracies, except as to centralized water and sewer water facilities. Intervenor's application stated that the nearest centralized water and sewer facilities were those at the Golden Hills Mobile Home Park on the east side of NW 80th Avenue. The application also stated, as part of its justification, that private central water and sewer was available. The evidence proved that the Golden Hills sewage treatment facilities are presently inadequate for use by the mobile home park itself and are being upgraded to meet current needs of the park. The facilities probably would not be available for Intervenor's use at the Amendment Parcel. While the Golden Hills sewage treatment facilities likely will not be available for Intervenor's use at the Amendment Parcel, the evidence was that the County is working with a large development called Golden Ocala, located approximately five miles north of the Amendment Parcel, for construction of a regional wastewater treatment plant to serve that development. If built, the regional facility might have capacity available for Intervenor's use at the Amendment Parcel. Intervenor's application and presentation to the County Commission on December 11, 2001, stated that the Amendment Parcel is undeveloped and that there is no existing agricultural use on the parcel. While these statements were not proven to be untrue, Petitioners presented evidence that hay was grown on the Amendment Parcel from the late 1980's through spring 2001. Three crops of hay were harvested each year. Each harvest consisted of approximately 18-20 bales; each bale brought approximately $45. Petitioners questioned the accuracy of representations as to the natural buffer strip between the Amendment Parcel and Sherman Oaks. Petitioners did not dispute the existence of relatively dense trees in the buffer strip. However, they are concerned that the line of trees does not extend to the west all the way to the entrance to Sherman Oaks off State Road 40; if additional commercial development occurs to the west on State Road 40, there will not be a similar natural buffer. Petitioners also point out that the trees in the natural buffer strip are not thick enough to form an impregnable barrier to access, light, and sound. They concede, however, that the natural buffer is helpful and that there is no similar natural buffer between them and commercial development to the east across NW 80th Avenue. Petitioners concede that the 75-foot buffer strip is wide enough to contain the entire natural buffer. However, they thought the buffer strip would have to be 90 feet wide to contain the drip lines of all the trees so as to protect their root systems. They conceded that the building setback line probably would prohibit construction of buildings within the drip line of the trees but were uncertain as to whether the setback line would apply to parking lots and driveways. Petitioners' evidence was insufficient to prove that the 75- foot buffer was not enough to protect the natural buffer. Petitioners' evidence was sufficient to prove that, during the presentation before the County Commission, Intervenor's representative may have misspoken or exaggerated on some points (e.g., the timing of FDOT's widening of State Road 40, the distance between the Amendment Parcel and the entrance to Sherman Oaks, and the extent of past and existing commercial development at the Intersection). But the evidence was that the County Commission questioned the information presented by Intervenor, and information also was presented by Petitioners and the County's planning staff; considering all the information presented, it was not proven that the County Commission based its decision on misinformation. At the final hearing, Petitioners raised the issue of stormwater runoff. Petitioners questioned whether stormwater can be managed on the Amendment Parcel without adversely impacting Sherman Oaks. Evidence presented by Petitioners proved that topography would make onsite stormwater management difficult. Natural runoff appears to flow in a northeasterly direction towards an already-stressed stormwater facility within Sherman Oaks. Intervenor suggested that the site could be "tilted" by grading to reverse natural runoff flow so as to contain runoff in the southwestern or western part of the site. Petitioners suggested that "tilting" may not be permissible due to the relatively shallow depth to limerock under the Amendment Parcel site, but Petitioners' evidence was not sufficient to prove that drainage could not be addressed onsite through "tilting." Petitioners also questioned the accuracy of traffic counts presented in the Planning Department's staff report on Intervenor's application. Staff used 2000 traffic counts that did not take into account all of the increased traffic as a result of the opening of the new school south of the Amendment Parcel. But the County's Planning Director explained that the traffic analysis required for a land use designation change does not have to be as rigorous and accurate as the analysis required at the time of concurrency determination. At that time, Intervenor probably will be required to conduct a detailed and up-to-date traffic analysis that would take into account actual traffic counts related to the new school. Other Pertinent Comprehensive Plan Provisions. Objective 1 of the County's FLUE states: Upon Plan adoption, growth and development will be coordinated by ensuring the appropriate compatibility with adjacent uses, topography, soil conditions, and the availability of services and facilities through the preparation, adoption, implementation and enforcement of innovative land development regulations, including mixed use techniques. Objective 2 of the County's FLUE states: In order to promote the efficient use of resources and to discourage scattered development and sprawl, Marion County shall establish and encourage development within Urban Areas. This will discourage the proliferation of urban sprawl, encourage infill and facilitate the provision of urban services through: Land Development Regulations that specify standards which allow higher intensities of land use in areas where adequate services are available and where specific design criteria are met, and future land uses are coordinated with appropriate topography conditions and soil types. A generalized Future Land Use Map which designates an appropriate amount of acreage in each land use category that reflects projected needs, existing development patterns, environmental suitability, availability of infrastructure, and community values. Policy 2.7 of the County's FLUE states: The County shall discourage scattered and highway strip commercial development by requiring the development of such uses at existing commercial intersections, other commercial nodes and town centers of mixed uses. Policy 2.8 of the County's FLUE states: The following performance criteria shall be followed when providing for the location of commercial and industrial land uses within the designated Urban Area: Protection of the development from natural hazards by locating development away from areas that have natural hazards or that may contain sensitive natural resources; Require concurrency be met to ensure adequate services from available public utilities and other urban services; Minimize environmental impacts by ensuring all appropriate permits are obtained and adhered to; Prevent over allocation of commercial land by requiring the adherence to needed acreage based on population projections; and Provide buffering from other land uses to minimize conflicts. Objective 4 of the Stormwater Management Sub-element of the County's Infrastructure Element states: Marion County's land development regulations shall implement procedures to ensure that, at the time a development permit is issued, adequate stormwater management facility capacity is available or the developer will be required to construct storm water facilities within his development according to County standards. Policy 4.1 of the Stormwater Management Sub-element of the County's Infrastructure Element provides some detail as to required content of the procedures, including a requirement: In addition, developers will comply where applicable with the Water Management districts flood control criteria for stormwater quantity and quality. (Citations omitted.) Policy 4.3 of the Sanitary Sewer Sub-element of the County's Infrastructure Element provides in pertinent part: The County's land development regulations shall provide for issuance of development permits within the identified wastewater service areas consistent with the following guidelines: * * * c. Where public wastewater treatment facilities are required, they shall be available concurrent with the impacts of development. Facilities which meet county specifications and the level of service standards for the service areas will be provided by the developer in the interim and will be connected to central facilities when they become available . . .. Internal Consistency. Petitioners presented no evidence that the Plan Amendment did not adhere to "needed acreage based on population projections." Consistent with the pertinent provisions of the County's Comprehensive Plan itself, the County's Planning Department Director testified that the County's Comprehensive Plan encourages the planning concept of nodal commercial development (allowing commercial development on all four corners of an intersection). This planning technique allows clustered commercial development in commercial nodes, locating in outlying areas, to provide localized commercial services for residents. Notwithstanding testimony that Petitioners probably would not patronize retail stores at the Intersection, the expert testimony was that commercial node development is intended to assist in reducing trips and average trip lengths by providing limited commercial services to area residents without necessitating their travel to a centralized commercial area. In the County’s Comprehensive Plan, the concept of commercial node development in non-urban areas is the basis for the RAC land use designation. See Finding of Fact 7, supra. Both of the County's witnesses testified that commercial development of all four quadrants of the Intersection is consistent with the County’s Comprehensive Plan policy of encouraging commercial node development because it has long-existing partial commercial development, is signalized, and provides access in all directions. The evidence did not prove that the County's Comprehensive Plan requires traffic, sanitary sewer, or drainage (or any other) concurrency at the time of the adoption of a plan amendment. The County has adopted in its Land Development Code a concurrency management system requiring that concurrency be established prior to the issuance of a development order (such as a building permit). The evidence was that determining capacity and concurrency at the development order stage in the development process is standard and customary, and is used in a number of jurisdictions in the state. Regardless of the land use classification and zoning classification of the Amendment Parcel, when the Intervenor initiates application for approval of an actual development order, the Intervenor will be required under the County's Land Development Code to establish concurrency, including traffic, sanitary sewer, and drainage concurrency. There was some evidence to support the contentions of some Petitioners that commercial development of the Amendment Parcel would not be compatible with residential and rural land uses in the area and that that NW 80th Avenue is a "line of demarcation" between urban uses and rural uses. But Petitioners failed to prove those contentions by the greater weight of the evidence, including the 1998 recommendations of the County Planning Department staff and Planning Commission to approve a land use change to Commercial west of NW 80th Avenue. In addition, the Comprehensive Plan's designation of land west of NW and SW 80th initially as Urban Expansion in 1992 and as Urban Reserve in 1994 anticipated ultimate urban development of this Intersection, as well as properties approximately a mile to the west of the Intersection. In addition, the Comprehensive Plan designated two RACs to the west of the Amendment Parcel on State Road 40 (between the Amendment Parcel and the City of Dunnellon). The first RAC is three miles to the west of the Amendment Parcel, and the second RAC is seven miles to the west of the Amendment Parcel. The evidence was that the Intersection would have been a RAC had it not been designated Urban Expansion and then Urban Reserve. Finally, at least one Petitioner conceded the point and contested only the timing of commercial development of the Amendment Parcel. Alleged Urban Sprawl. Petitioners presented no analysis of urban sprawl indicators. They also presented no evidence that the Plan Amendment allocated commercial land in excess of demonstrated need in the County. As found, the Amendment Parcel is across NW 80th Avenue from existing commercial and other urban development; in addition, provision of nodal commercial development is intended to counter at least some symptoms of urban sprawl.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding that Marion County's small-scale amendment 01-S27 is "in compliance." DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2002. COPIES FURNISHED: Mary M. Bartlett 8080 Northwest 2nd Street Ocala, Florida 34482 Robert S. Inglis 8078 Northwest 2nd Street Ocala, Florida 34482 Helen Thomas 8130 Northwest 2nd Street Ocala, Florida 34482 Paul and Joan Lussier 8071 Northwest 2nd Street Ocala, Florida 34482 Wanda Negron 8076 Northwest 2nd Street Ocala, Florida 34482 Thomas D. MacNamara, Esquire Marion County's Attorney's Office 601 Southeast 25th Avenue Ocala, Florida 34471 Steven Gray, Esquire Hart & Gray 125 Northeast First Avenue, Suite 1 Ocala, Florida 34470 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue is whether plan amendments 00-1, 97-4, and 01-7 adopted by Ordinance No. 598 on September 25, 2001, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioners, Sally O'Connell (O'Connell), Donna Melzer (Melzer), and Martin County Conservation Alliance, Inc. (MCCA), contend that three amendments (Amendments 00-01, 01-7, and 97-4) to the Martin County Comprehensive Plan (Plan) adopted by Respondent, Martin County (County), are not in compliance. Amendment 00-01 makes certain textual changes to the Economic Element and Future Land Use Element (FLUE) of the Plan. Amendments 01-7 (also known as the Blydenstein amendment) and 97-4 (also known as the Seven J amendment) amend the Future Land Use Map (FLUM) by changing the land use designation on property owned by Intervenor, Dick Blydenstein (Blydenstein), and Seven J's Investments, Inc., from Mobile Home Residential and Medium Density Residential, respectively, to General Commercial. The parties agree that the validity of Amendments 01-7 and 97-4 is contingent on whether Amendment 00-01 is in compliance. On September 25, 2001, the County approved Ordinance No. 598, which adopted the foregoing amendments and three other FLUM amendments not relevant to this dispute. On November 16, 2001, Respondent, Department of Community Affairs (Department), the state agency charged with the responsibility of reviewing comprehensive land use plans and amendments, issued its Notice of Intent to find the amendments in compliance. In addition, an external review of the amendments was conducted by the Department of Transportation (DOT), the Treasure Coast Regional Planning Council, the Department of State, and the Department of Environmental Protection. Except for minor objections by DOT, which were satisfactorily resolved, no objections were filed by any reviewing agency. On December 7, 2001, as later amended on December 20, 2001, Petitioners filed their Petition for Formal Administrative Hearing challenging the plan amendments. As reflected in their unilateral Pre-Hearing Statement, Petitioners contend that: The data and analysis for the amendments was not available to the public throughout the review and adoption process. The conclusions about supply and demand for commercial land uses that underlie the adoption of the amendments to the Economic and Future Land Use Elements, and the "Blydenstein" and "7J" [FLUM] Amendments are not supported by the best available and professionally acceptable data and analysis. Instead of a deficit of, and need for, land available for commercial uses, there is a surplus of land available for such uses. The "Blydenstein" and "7J" [FLUM] Amendments are not supported by data and analysis concerning the availability of infrastructure, the character of the land and the need for redevelopment. The approval of these FLUM amendments is inconsistent with several provisions of Ch. 163, Fla. Stat., Rule 9J-5, F.A.C., and the Martin County Comprehensive Plan. These allegations may be grouped into three broad categories: that the data and analysis was not available for public inspection throughout the adoption process; (2) that the plan amendments are not based on the best available, professionally acceptable data and analysis; and (3) that the Blydenstein and Seven J amendments are not supported by data and analysis as they relate to infrastructure, character of land, and need for redevelopment and thus are inconsistent with relevant statutes, Department rules, and Comprehensive Plan provisions. Although Petitioners have not addressed the first allegation in their Proposed Recommended Order, and have apparently abandoned that issue, in an abundance of caution, a brief discussion of that matter is presented below. The parties The Department is the state land planning agency responsible for reviewing and approving comprehensive plan amendments by local governments. The County is a political subdivision of the State and is the local government which enacted the three plan amendments under review. The overall size of the County is approximately 538 square miles, with agricultural uses on 72 percent of the land, residential uses on 16 percent of the land, public conservation uses on 6.5 percent of the land, and other uses (such as commercial, industrial, and institutional) on the remaining 5.5 percent of the land. The current population is around 125,300 residents. Blydenstein is the owner of the property that is the subject of Amendment 01-7. He submitted oral and written comments concerning Amendment 01-7 to the County during its adoption. Melzer is a former County Commissioner who resides and owns property within the County. She is also the chairperson and member of the board of directors for MCCA. Melzer presented comments in opposition to all three amendments during the time period beginning with the transmittal hearing for the plan amendments and ending with the adoption of those amendments. O'Connell has resided and owned property in the County since 1984. She presented comments to the County in opposition to Amendments 00-01 and 97-4 (but not to Amendment 01-07) during the time period beginning with the transmittal hearing for the plan amendments and ending with the adoption of those amendments. MCCA is a not-for-profit corporation first organized in 1965 and later incorporated in 1997 to advocate and promote the protection of the natural environment and quality of life in the County. The specific purpose of the corporation is to "conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, to maintain and improve the quality of life for all of the residents of Martin County, and to work to these ends." The corporation holds monthly meetings and annual forums to educate its members and others about issues related to the County's growth management. In prior years, it has actively participated in the development of the County's Comprehensive Plan and actively advocated for a public land acquisition program in the County. Presently, there are 104 individual members (of whom 99 reside in the County), 9 delegates at large, and 20 corporate and non-profit corporate members. The latter group includes such organizations as 1000 Friends of Florida, the Marine Resources Council, and the Citizens Stormwater Protection Group, who also have individual members residing within the County. The parties have stipulated that MCCA made comments to the County in opposition to the three amendments and that a substantial number of MCCA members own businesses within the County. The record also shows that MCCA's Board of Directors passed an appropriate resolution authorizing MCCA to file this action. Intervenor, the Economic Council of Martin County (ECMC), is a non-profit corporation whose mission is to dedicated to building a quality community which provides a healthy economy and protects the quality of life and to encourage the planned growth of the County. Like the MCCA, the ECMA has actively participated in the development of the Comprehensive Plan. Its members are individuals and businesses who reside, own property, and operate businesses within the County. The ECMC made comments to the County in support of the three amendments during the adoption of those amendments. The Amendments Amendment 00-01 represents a policy change by the County and amends the text of the Economic Element and FLUE to change the methodology for determining the need for commercial land within the County. Prior to the amendment, the County used a supply-demand equation based upon an "acreage per population" methodology to determine the amount of commercial land use necessary to serve the County. Under the old methodology, relevant portions of the FLUE, in conjunction with various provisions in the Economic Element, were used to establish a supply-demand equation that would determine whether the projected need for commercial lands by a future population of the County could be met by the current amount of designated lands. If the result of the equation was a surplus of commercial lands, that factor alone would require the denial of any request to redesignate land for commercial use, regardless of any other factor or circumstance. According to the repealed text of the Plan, this methodology produced a 1,131-acre surplus of commercial lands for the year 2010. The County proposes to use a more flexible policy and guideline type of review to make this need determination. Rather than projecting future demand for commercial land based solely on a numerical calculation, the County will make that determination based on a number of factors which must be weighed together, such as suitability, location, compatibility, community desire, and numerical need. It also proposes to change the manner in which numerical need is determined. Under the new methodology, the County will now use jobs and the amount of land needed to support those jobs. Put another way, commercial demand will be based on the projected number of jobs in the future. Using the new methodology, and after adding a 25 percent market factor, the County projects that in the year 2015 there will be a commercial land deficit of 112 acres. To accomplish this change in policy, the amendment alters the text of the Economic Element and FLUE by moving some language from the goals, objectives, or policies sections of the elements to preliminary sections that contained summaries of the data and analysis relied upon for each element. It also eliminates certain language from the goals, objectives, and policies of the elements, or from the preceding sections containing summaries of data and analysis, where such language was redundant and already appeared elsewhere in the Plan. In contrast to the former provision, the new amendment makes a finding that "the raw data appears to show that there is a significant deficit of commercial land necessary to accommodate economic needs if Martin County's ten year trend toward retail/service jobs continues." Amendment 01-07 pertains to a 27.8-acre triangular- shaped tract of land located less than a mile south of the center of the urban area of Indiantown, a small community in the southwestern part of the County. The property, which lies within the County's Primary Urban Service District, is bounded on the north by State Road 76, a major arterial roadway which connects Indiantown with Stuart, on the west by State Road 710, another major arterial roadway which connects Indiantown with Okeechobee and Palm Beach Counties, and on the east by Southwest Indiantown Avenue, which connects State Roads 76 and 710. The site is surrounded by vacant property, including Agriculture-designated land on three sides, and Estate Density Residential on the other. Immediately north of State Road 76 lies the C-44 Canal, a major waterway that connects Lake Okechobeee with the South Fork of the St. Lucie River and ultimately the Atlantic Ocean. A two-lane bridge (with no pedestrian walkway) provides automobile access from Indiantown to the Blydenstein property. The amendment changes the land use designation on the property from Mobile Home Residential (8 dwelling units per acre) to General Commercial. Even though the property is designated for use as a mobile home park, the property has been vacant and undeveloped for more than 20 years and is used principally for cattle grazing. The Seven J property consists of 2.99 acres located just west of Jensen Beach in the northern part of the County at the intersection of U.S. Highway 1 and Westmoreland Boulevard, both major arterial roadways. The property is adjacent to a partially built Development of Regional Impact (DRI) known as the West Jensen DRI and is virtually surrounded by other commercial uses. The amendment changes the land use designation on the property from Medium Density Residential (8 dwelling units per acre) to General Commercial. Presently, a nursery, older residential homes, rental property, and wetlands are found on the property; the nearby property is primarily made up of both developed and undeveloped commercial land. Availability of Data and Analysis Rule 9J-5.005(1), Florida Administrative Code, requires in part that "[a]ll background data, studies, surveys, analyses, and inventory maps not adopted as part of the comprehensive plan shall be available for public inspection while the comprehensive plan is being considered for adoption and while it is in effect." Relying upon this provision, Petitioners have contended in their Unilateral Prehearing Stipulation that the County failed to make such data and analysis "available to the public throughout the review and adoption process." At least one general source of data that was used by County experts was not physically present in the County offices for inspection by the public during the adoption process. That derivative data source was entitled "CEDDS 2000: the Complete Economic and Demographic Data Source" and was prepared by Woods and Poole Economics, a Washington, D.C. consulting firm. The data source was used by one of the County's experts (Dr. Nelson) "to generate [the] demand numbers" in his technical report. In order to inspect and review this data, Petitioners, like the County or any other interested person, would have had to purchase a copy from the authors. However, all of the data and analyses accumulated or generated by the County staff were available for public inspection during the time between the transmittal and adoption of the amendments under review. Further, Petitioners did not show how they were prejudiced by the failure of the County to maintain the Woods and Poole data in their offices. The Department does not construe the foregoing rule as narrowly as Petitioners, that is, that every piece of data relied upon by a local government must be physically present in the jurisdiction of the local government. Indeed, the Department has never found a plan amendment out of compliance solely on the basis that data was not physically located at a local government's offices. Rather, it construes the rule more broadly and considers the rule to have been satisfied so long as data and analyses are "available for public inspection," even if this means that derivative source data such as the Woods and Poole report must be purchased from out- of-state sources. Were the plan amendments based on the best available, professionally acceptable data and analysis? Petitioners contend that the plan amendments "are not supported by the best available and professionally acceptable data and analysis." As to this contention, Rule 9J-5.005(2)(a), Florida Administrative Code, sets forth a general directive that all plan provisions "be based upon relevant and appropriate data and analyses applicable to each element." In addition, the same rule requires that the data must be "collected and applied in a professionally acceptable manner." Petitioners contend that the County's collection of data to support the amendments, and its analysis of that data, was not professionally acceptable, as required by the rule. More specifically, Petitioners contend that the County undercounted the commercial land inventory used in projecting future need by omitting between 80 and 100 acres of undeveloped commercial land from the West Jensen DRI, by failing to count commercial development allowed in industrial- designated lands, and by failing to include 30 acres of land at the Witham Field airport which remains available for commercial development. They also contend that the County inadvertently failed to include more than 60 acres that were placed in the Commercial category by amendments to the FLUM in 1995 and 1996 and which remain undeveloped and available for new commercial development. In support of the amendments, the County submitted to the Department more than 1,000 pages of supporting materials and maps, including 384 pages related to the FLUM amendments, 642 pages of revised supporting data for the text amendments, and 89 pages of public comments. In choosing the sources of data to support the plan, the County used generally accepted, nationally available data as the basis for its review and revision of the Plan. After reviewing the foregoing material, the Department found such data and analysis to be relevant and appropriate. The County also generated extensive data from locally available information that is unique to the County, such as an inventory of the lands within the County that are designated for Commercial uses on the FLUM, but do not yet have any developed commercial uses on them. As to one of Petitioners' contentions, the County agrees that its staff inadvertently omitted 60.4 acres of commercial property which was changed to that designation by certain 1995-96 FLUM amendments. However, the greater weight of evidence shows that this omission was not significant in terms of the overall collection of data, and it did not render the gathering of the other data as professionally unacceptable. Petitioners go on to contend that the analysis of the data (in determining the supply inventory) was flawed for a number of reasons. First, they argue that the undeveloped portions (around 70 acres or so) of the West Jensen DRI that are commercially-designated land should have been included in the commercial land inventory. The West Jensen DRI is an approximately 180-acre residential/commercial development with a large commercial component. Even though specific site plans have not been issued for some of the undeveloped property, the County excluded all of the undeveloped acreage because the property is dedicated under a master plan of development, and therefore it would be inappropriate to include it as vacant inventory. On this issue, the more persuasive evidence shows that the treatment of undeveloped land in a DRI (subject to a master plan of development) is a "close call" in the words of witness van Vonno, and that it is just as professionally acceptable to exclude this type of undeveloped land from vacant commercial inventory as it is to include it. Therefore, by excluding the West Jensen DRI land from its inventory count, the County's analysis of the data was not flawed, as alleged by Petitioners. The Plan itself does not allow commercial uses within the Industrial land category. However, the County's Land Development Regulations (LDRs) permit certain commercial uses on Industrial lands when done pursuant to specific overlay zoning. While the County (at the urging of the Department) intends to review (and perhaps repeal) these regulations in 2003, and possibly create a new mixed-use category, there are now instances where commercial uses are located on Industrial lands by virtue of the LDRs. Because of this anomaly, Petitioners contend that the County's analysis of the data was flawed because it failed to count vacant, surplus lands in the Industrial land use category that are available for commercial development. Except for arbitrarily allocating all undeveloped industrial land to the commercial category, as Petitioners have proposed here, the evidence does not establish any reasonable basis for making an industrial/commercial division of industrial-designated lands for inventory purposes. Indeed, no witness cited to a similar allocation being made in any other local government's comprehensive plan as precedent for doing so here. In those rare instances where the Plan itself permits multiple uses in a single land category, such as Commercial Office/Residential (an office and multi-family land use designation), the County used a supply figure that was derived from estimating how much land in this category was developed commercially as opposed to residential and allocating acreage from the category based on that percentage. No party has suggested that such a methodology be used here, particularly since the mixed use categories are distinguishable from single land use categories, such as Industrial and Commercial. Moreover, the County has demonstrated a conscious effort to separate these two types of land uses (industrial and commercial) into separate and distinct categories, they are depicted separately on the County's FLUM, and the Plan has separate locational criteria for the siting of these lands. Based on the foregoing, it is found that the County's analysis of the data was not flawed (or professionally unacceptable) because it failed to include undeveloped industrial lands in the commercial inventory. Petitioners next contend that the County erred in its commercial inventory count by failing to include around 30 acres of vacant land located at Witham Field, a local airport. Under the present zoning scheme at the airport, only aviation- related commercial uses are allowed, and thus the vacant land cannot be used for any other commercial purpose. Further, the airport is designated Institutional on the land use map, rather than Industrial, and it would be inappropriate to count vacant institutional lands in the commercial land inventory. Therefore, the exclusion of the Witham Field land from the commercial inventory did not render the County's analysis of the data professionally unacceptable. Finally, the remaining contentions by Petitioners that the County understated its supply inventory for both commercial and industrial property have been considered and rejected. In summary, it is found that the amendments are based on relevant and appropriate data and analyses, and that the data was collected and applied in a professionally acceptable manner. The Blydenstein FLUM Amendment Petitioners generally contend that there is no demonstrated need for the Blydenstein parcel to be redesignated as General Commercial, that the amendment is not based upon data and analysis, that the County failed to coordinate the land use with the availability of facilities and services, that the amendment is inconsistent with redevelopment and infill policies, and that the amendment encourages urban sprawl. The Blydenstein amendment reclassifies 28 acres to commercial use and will amount to 36 percent of the existing commercial development in downtown Indiantown. In terms of need, the County projects that only 17 acres of commercial development will be needed in Indiantown through the year 2015, and there presently exist around 186 acres of undeveloped commercial acreage in that community. At the same time, Amendment 00-01 reflects a deficit of 112 acres of commercial land in the County during the same time period. Although the local and countywide demand calculations are seemingly at odds, at least in the Indiantown area, there will be a surplus of unused commercial lands through the end of the current planning horizon, and thus there from that perspective there is no need for an additional 28 acres of commercial property in that locale. Notwithstanding a lack of numerical need, that consideration is not the sole factor in determining whether the amendment should be approved. As noted earlier, in addition to need, the County considers such factors as the suitability of the property for change, locational criteria, and community desires in making this determination. Here, the subject property is suitable for commercial development because of its location on two major arterial roadways and its ready access to a railroad and major waterway. Further, the property is located within the Primary Urban Services District, which is an area specifically designated for more intense, urban development. In addition, the current land use designation allows 8 residential units per acre, which is an "urban" type of designation. Finally, because there is vacant, undeveloped property surrounding the subject property, the redesignation of the property to General Commercial will not pose a compatibility problem with any residential areas. When these considerations are weighed with the need factor, it is found that the proposed land use change is appropriate. The existing land use designation of Mobile Home Residential is a carryover land use designation which recognized the mobile home use that occurred on the property when the future land use maps were originally created. At the present time, all mobile home use has ceased and the property is vacant. The nearest residential neighborhood is located to the north across State Road 76 beyond the Canal and is at least 600 feet away. Because of the property's configuration and immediate proximity to major arterial roads, railroad tracks, and a canal, the greater weight of evidence shows that it is not suitable for residential development. These considerations support the County's determination that the property has been inappropriately designated as residential for more than a decade. Although the County did not conduct formal studies to determine whether the public facilities and services will be capable of serving the proposed change in land use, a general analysis of the availability and adequacy of public facilities was performed by its staff. That analysis reflects that the property lies within the service area of a local water and sewer utility and has access to two major roadways. Based on its proximity to major roadways and local public utilities, the County does not anticipate that the change in land use will adversely impact public facilities and services. To ensure that this does not occur, the County will require a traffic impact analysis at the time the parcel is submitted for development review. Rule 9J-5.006(3)(b)8., Florida Administrative Code, requires that a plan "[d]iscourage the proliferation of urban sprawl." Leapfrog development is a form of urban sprawl and typically means leaping over a lower density development and placing higher density development just beyond the lower density development. Given the location of the Blydenstein property within the Primary Urban Services District, and the adjacent major arterial roads, railroad, and canal, the greater weight of evidence supports a finding that the proposed land use change will not constitute leapfrog development. The change in land use will not promote, allow, or designate urban development in radial, strip, isolated, or ribbon patterns; it will not result in the premature or poorly planned conversion of rural land; it will not discourage or inhibit infill or redevelopment of existing neighborhoods; it will not result in poor accessibility among linked or related land uses; and it will not result in a loss of significant amounts of functional open space. In the absence of these indicators, it is found that the amendment will not contribute to urban sprawl. The Seven J FLUM Amendment Like the Blydenstein amendment, Petitioners likewise contend that there is a lack of demonstrated need for the Seven J amendment; that the amendment lacks data and analysis; that the County failed to coordinate with the availability of services; that the amendment will promote urban sprawl; and that the amendment is internally inconsistent. The Seven J property is surrounded by the partially built-out West Jensen DRI, is located within the County's Primary Urban Services District, and is considered to be in a "regional hub" of activity, that is, within the core of major commercial development in the northern part of the County. Further, it is located on an eight-lane road at a major intersection (U.S. Highway 1 and Westmoreland Boulevard). Therefore, the change is compatible with surrounding existing and planned commercial uses, and the County's redesignation of the property from Medium Density Residential (8 units per acre) to General Commercial is appropriate. Further, the greater weight of evidence shows that because the property is located within the Primary Urban Services District, is near existing commercial and residential development, and urban services are already provided, the Amendment will not contribute to urban sprawl. Finally, the greater weight of evidence supports a finding that the amendment is internally consistent and based on adequate data and analysis, contrary to Petitioners' assertions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Martin County Plan Amendments 00-01, 01-07, and 97-4 are in compliance. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2002. COPIES FURNISHED: Steven M. Siebert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Richard J. Grosso, Esquire Environmental and Land Use Center, Inc. 3305 College Avenue Shepard Broad Law Center Fort Lauderdale, Florida 33314-7721 Joan P. Wilcox, Esquire 2336 Southeast Ocean Boulevard, PMP 110 Stuart, Florida 34986 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 David A. Acton, Esquire Office of County Attorney 2401 Southeast Monterey Road Stuart, Florida 34996-3322 Johnathan A. Ferguson, Esquire Ruden, McClosky, Smith, Shuster & Russell, P.A. 145 Northwest Central Park Plaza, Suite 200 Port St. Lucie, Florida 34986-2482 Linda R. McCann, Esquire Royal Palm Financial Center 789 South Federal Highway, Suite 310 Stuart, Florida 34994-2962
The Issue The issue to be determined in this case is whether the amendments to the Palm Beach County Comprehensive Plan (“the Comp Plan”) adopted by the Board of County Commissioners of Palm Beach County by Ordinance No. 14-030 (“Proposed Amendments”) are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Petitioner Alerts of PBC, Inc. (“Alerts”), is a Florida not-for-profit corporation doing business in Palm Beach County. Alerts made timely objections and comments to the County on the Proposed Amendments. Petitioner Patricia Curry is a resident and landowner in Palm Beach County. Ms. Curry made timely objections and comments to the County on the Proposed Amendments. Petitioner Robert Schutzer is a resident and landowner in Palm Beach County. Mr. Schutzer made timely objections and comments to the County on the Proposed Amendments. Petitioner Karen Schutzer is a resident and landowner in Palm Beach County. Ms. Schutzer made timely objections and comments to the County on the Proposed Amendments. Respondent Palm Beach County is a political subdivision of the State of Florida and has adopted the Comp Plan, which it amends from time to time pursuant to section 163.3184. Intervenor Minto is a Florida limited liability company doing business in Palm Beach County. Minto is the owner of all of the 3,788.6 acres (“the Property”) which are the subject of the Proposed Amendments, with the exception of two parcels totaling 40.04 acres, which are owned by the Seminole Improvement District. Minto appointed the board of supervisors of the Seminole Improvement District pursuant to state law. Background FLUE Objective 1.1 establishes a unique Managed Growth Tier System “to protect viable existing neighborhoods and communities and direct the location and timing of future development.” The Property is located in the County’s Rural Tier and is bounded by Exurban Tier to the north and east. North of the Property is a large subdivision known as the Acreage, which was described by Respondents as “antiquated” because it was developed in a manner that was common decades ago before modern community planning concepts and growth management laws. The Acreage is dominated by 1.25-acre residential lots, laid out in a grid pattern with few other uses. Although the residents of the Acreage have a strong sense of community, it is apparently a matter of aesthetics, familiarity, and social intercourse, because the Acreage is not a community in the modern planning sense of providing a mix of uses where residents can live, shop, work, and play. It is a development pattern that is now discouraged by state law and the Comp Plan, because it is inefficient with respect to the provision and use of public services. The Property and the Acreage are within a 57,000-acre area known as the Central Western Communities (“CWC"). The CWC has been the subject of extensive planning efforts by the County for many years to address land use imbalances in the area. There are many residential lots, but few non-residential uses to serve the residents. In 2008, the previous owner of the Property, Callery- Judge Groves (“Callery”), obtained an Agricultural Enclave (AGE) future land use designation for essentially the same area as the Property. The Comp Plan was amended to establish an AGE future land use designation, AGE policies, a conceptual plan of development, and implementing principles (“the 2008 Amendments”). Under the 2008 Amendments, the site was limited to 2,996 residential units and 235,000 square feet of retail and office uses. No development has been undertaken pursuant to the 2008 Amendments. In 2013, the site was sold to Minto, which submitted a Comp Plan amendment application in November 2013, and a revised application in July 2014. On October 29, 2014, the County adopted the Proposed Amendments. The Proposed Amendments change the future land use designation of 53.17 acres (“the outparcels”) from RR-10 to AGE, and increase residential density to 4,546 units and increase intensity to two million square feet of non-residential uses, 200,000 square feet of civic uses, a 150-room hotel and a 3,000- student college, and revise the Conceptual Plan and Implementing Principles. The Proposed Amendments would also revise text in the Introduction and Administration, Future Land Use, and Transportation Elements. The Map Series would be amended to add 53.17 acres to the Limited Urban Service Area on Map LU 1.1 and Map LU 2.1, and to identify new Rural Parkways on Map TE 14.1. Petitioners’ Challenge Petitioners contend the Proposed Amendments are not “in compliance” because they fail to establish meaningful and predictable standards; do not comply with the agricultural enclave provisions of section 163.3164(4); are not based upon relevant and appropriate data and analysis; promote urban sprawl; are incompatible with adjacent communities and land uses; and create inconsistencies within the Comp Plan. Many of the issues raised and the arguments made by Petitioners fail to acknowledge or distinguish the 2008 Amendments that address future development of the Property. In several respects, as discussed below, the 2008 Amendments already authorize future development of the Property in a manner which Petitioners object to. In several respects, the types of impacts that Petitioners are concerned about are actually diminished by the Proposed Amendments from what is currently allowed under the 2008 Amendments. Meaningful and Predictable Standards Petitioners contend that proposed FLUE Policies 2.2.5-d, 2.2.5-e, and 2.2.5-f, and Maps LU 1.1 and 2.1 fail to establish meaningful and predictable standards for the use and development of land and fail to provide meaningful guidelines for the content of more detailed land development and use regulations, in violation of section 163.3177(1). The Proposed Amendments add more detail to the standards that were adopted in the 2008 Amendments. The Proposed Amendments establish substantially more direction for the future development of the Property than simply a land use designation and listing of allowed uses, which is typical in comprehensive plans. Petitioners contend the Proposed Amendments lack adequate standards because they refer to the use of “appropriate new urbanism concepts,” which Petitioners say is vague. New urbanism refers to land use planning concepts such as clustering, mixed-use development, rural villages, and city centers. See § 163.3162(4), Fla. Stat. (2014). In land use planning parlance, new urbanism creates more “livable” and “sustainable” communities. The term “appropriate new urbanism concepts” used in the Proposed Amendments is the same term used in section 163.3162(4), dealing with the development of agricultural enclaves. There are many concepts that are part of new urbanism, which can be used in combination. Which concepts are “appropriate” depends on the unique opportunities and constraints presented by the area to be developed. Use of the term “appropriate new urbanism concepts” in the Proposed Amendments adds detail to the future development standards applicable to the Property. It does not create vagueness. Petitioners contend the proposed amendments of Maps LU 1.1 and 2.1 do not provide meaningful and predictable standards and guidelines. However, the maps are only being amended to show that 53.17 acres of outparcels within the Property are being added to the existing Limited Urban Service Area. The map amendments do not diminish the meaningfulness or predictability of any standards in the Comp Plan. The preponderance of the evidence shows the Proposed Amendments establish meaningful and predictable standards. Agricultural Enclave Petitioners contend the Proposed Amendments fail to meet the requirements for an agricultural enclave in section 163.3164. As explained in the Conclusions of Law, consistency with section 163.3164 is not a component of an “in compliance” determination. Furthermore, the Property is already designated Agricultural Enclave in the Comp Plan. Data and Analysis Petitioners contend the amendment of the Limited Urban Service Area is not supported by relevant and appropriate data and analysis as required by section 163.3177(1)(f). The inclusion of the outparcels is logical and reasonable. It is consistent with the Comp Plan policies applicable to Limited Urban Service Areas. It is supported by data and analysis. Petitioners contend the increases in density and intensity allowed by the Proposed Amendments are not supported by data and analysis showing a need for the increases. However, the increases are supported by relevant and appropriate data and analysis, including population projections and extensive analysis of the need for non-residential uses in the CWC. Population projections establish the minimum amount of land to be designated for particular uses; not the maximum amount of land. See § 163.3177(1)(f)3., Fla. Stat (2014). Petitioners make several claims related to the availability of public utilities and other services to the Property. The data and analysis show sufficient capacity for roads, transportation, schools, water supply, wastewater treatment, fire, emergency and police either already exists or is contemplated in the Comp Plan to accommodate the development authorized by the Proposed Amendments. The preponderance of the evidence shows the Proposed Amendments are supported by relevant data and analysis. Urban Sprawl Petitioners contend the Proposed Amendments do not discourage the proliferation of urban sprawl. Urban sprawl is defined in section 163.3164(51) as “a development pattern characterized by low density, automobile-dependent development with either a single use or multiple uses that are not functionally related, requiring the extension of public facilities and services in an inefficient manner, and failing to provide a clear separation between urban and rural uses.” Petitioners contend the Property does not qualify for the presumption against urban sprawl under the criteria in section 163.3162(4), but Minto did not rely on that statutory presumption. Petitioners contend the Proposed Amendments create five of the 13 primary indicators of urban sprawl set forth in section 163.3177(6)(a)9.: Promotes, allows, or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses. Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development. Fails to maximize use of existing public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. The evidence presented on this issue by Petitioners was inconsistent with generally accepted land use planning concepts and principles. The Proposed Amendments do not promote urban sprawl. They go far to rectify existing sprawl conditions in the CWC. Findings relevant to the five indicators have already been made above. Compatibility with adjacent uses is discussed below. There are ample data and analysis which show the Proposed Amendments discourage urban sprawl. Respondents’ characterization of the Proposed Amendments as the opposite of urban sprawl is not unreasonable. The preponderance of the evidence shows the Proposed Amendments discourage the proliferation of urban sprawl. Compatibility Petitioners contend the Proposed Amendments are “incompatible with the lifestyle of the existing and surrounding communities and adjacent agricultural and other land uses.” Protection of Petitioners’ lifestyle cannot mean that surrounding areas must remain undeveloped or must be developed in a similar suburban sprawl pattern. Land use imbalances in the CWC are rectified by the Proposed Amendments while providing large buffers and a transition of land uses on the Property to protect adjacent land uses. The Acreage is more accurately characterized as suburban rather than rural. Moreover, the Proposed Amendments include a conceptual plan and development guidelines designed to create a clear separation between urban uses on the Property and less dense and intense external uses. Residential densities near the perimeter of the Property would correspond to the density in the Acreage. The proposed distribution of land uses and large open space buffers would not establish merely an adequate transition. They would provide substantial protection to adjacent neighborhoods. A person at the periphery of the Property would likely see only open space, parks, and low-density residential uses. The distribution of land uses and natural buffers in the Proposed Amendments provide more protection for external land uses than the 2008 Amendments. The more persuasive evidence presented indicates that Petitioners and other persons living near the Property would be beneficiaries of the Proposed Amendments because they could use and be served by the office, commercial, government, and recreational uses that will be available nearby. The preponderance of the evidence shows the Proposed Amendments are compatible with adjacent land uses. Internal Consistency The Comp Plan’s Introduction and Administration Element and FLUE contain statements of intent. They are not objectives or policies. Petitioners contend the Proposed Amendments are inconsistent with some of the statements. Petitioners contend the Proposed Amendments are inconsistent with the Introduction and Administration Element statements discouraging growth to the west where services are not adequate, do not provide for orderly growth or the provision of facilities and services to maintain the existing quality of life in an economical manner, and do not recognize countywide growth management strategies or maintain the diversity of lifestyles. Findings that refute this contention have been made above. Petitioners contend the Proposed Amendments are inconsistent with several general statements in FLUE Sections I A, I B, and I C. regarding respect for the character of the area, protection of quality of life and integrity of neighborhoods, prevention of “piecemeal” development, and efficient provision of public services. Findings that refute this contention have been made above. Petitioners contend FLUE Policy 2.2.5-d allows land uses which are inconsistent with the policies applicable to the Rural Tier in which the Property is located. In the proposed policy, the County exempts the Project from any conflicting Rural Tier policies that would otherwise apply. Under the County’s Managed Growth Tier System, the tiers are the “first level” land use consideration in the FLUE. Therefore, it would have been helpful to amend the Rural Tier section of the FLUE to indicate the exceptions to Rural Tier policies for agricultural enclaves, in general, or for the Property, in particular. Instead, the Proposed Amendments place the new wording about exceptions in the section of the FLUE dealing with agricultural land uses. However, as stated in the Conclusions of Law, where the exception is located in the comprehensive plan is not a consistency issue. The County has shown there are unique considerations involved with the CWC that justify the exceptions. It also demonstrated that the Proposed Amendments would accomplish numerous objectives and policies of the Comp Plan that could not be accomplished without creating exceptions to some Rural Tier policies. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 1.1-3 because they encourage the proliferation of urban sprawl. That contention has been rejected above. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 1.1-6 because they do not protect agricultural land and equestrian uses. The evidence shows that agricultural and equestrian uses are enhanced by the Proposed Amendments over the existing provisions of the Comp Plan. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-b, which addresses criteria re- designating a tier. This policy is not applicable because the Proposed Amendments do not re-designate a tier. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-c, which requires the review of the tier system as part of each Evaluation and Appraisal review. Evaluation and Appraisal Reviews are no longer required by state law. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-d, which states a tier shall not be re-designated if it would cause urban sprawl. This policy is not applicable because the Proposed Amendments do not re- designate a tier. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-a, which requires the County to protect and maintain the rural residential, equestrian, and agricultural areas within the Rural Tier. The Proposed Amendments and Conceptual Plan increase the level of protection for these uses over what is currently in the Comp Plan. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-d, which generally prohibits subdividing parcels of land within the Rural Tier unless certain conditions are met. The Proposed Amendments do not subdivide any parcels. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-k, which addresses the designation of “sending areas” for Transfer of Development Rights (“TDR”). This policy only applies to parcels with a RR20 future land use designation and there are no such parcels existing or that would be created by the Proposed Amendments. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-l, which requires the County to provide rural zoning regulations for areas designated Rural Residential. The Property does not have any Rural Residential designations. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 2.4-b, which provides that the TDR program is the required method for increasing density within the County. The County applies this policy only to density increases in urban areas, because they are the only areas authorized to receive TDRs. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 2.1 and some related policies, which promote balanced growth. The preponderance of the evidence shows the Proposed Amendments will further this objective and its policies because they correct the current imbalance of land uses in the CWC and provide for a balanced mix of residential, agricultural, commercial, light industrial, office, recreation, and civic uses. Petitioners presented no evidence to support their claim that Proposed Amendments would exceed the natural or manmade constraints of the area. Petitioners presented no credible evidence that transportation infrastructure and other public services could not be efficiently provided to the Property. The data and analysis and other evidence presented show otherwise. Petitioners contend there is no justification for the increased density and intensity authorized by the Proposed Amendments. There was ample justification presented to show the increases were needed to create a sustainable community where people can live, work, shop, and play. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 2.2 and some related policies, which require development to be consistent with land use designations in the Comp Plan. Petitioners’ evidence failed to show any inconsistencies. The Proposed Amendments are compatible with and benefit adjacent land uses, as found above. Petitioners contend the Proposed Amendments fail to include “new urbanism” concepts as required by section 163.3164(4) and Policy 2.2.5-i. The evidence presented by Respondents proved otherwise. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 3 and some related policies, which address the provision of utilities and other public services. Petitioners presented no credible evidence to support this claim. The data and analysis and other evidence presented show that public services are available or planned and can be efficiently provided to the Property. Petitioners argued the Proposed Amendments were inconsistent with several other FLUE policies generally related to compatibility with adjacent land uses and the provision of public services, all of which Petitioners failed to prove as explained above. The preponderance of the evidence shows the Proposed Amendments would not create internal inconsistency in the Comp Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity issue a final order determining the Proposed Amendments adopted by Palm Beach County Ordinance No. 2014-030 are in compliance. DONE AND ENTERED this 17th day of April, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2015. COPIES FURNISHED: Ralf G. Brookes, Esquire 1217 East Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Tara W. Duhy, Esquire Lewis Longman and Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 (eServed) Amy Taylor Petrick, Esquire Palm Beach County Attorney's Office 301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issue is whether a development order adopted by Respondent City of Marathon by Resolution PC00-09-04 is consistent with the comprehensive plan, land development regulations, and statutes.
Findings Of Fact Respondent City of Marathon (Marathon) was incorporated on November 30, 1999. It adopted as its land development regulations (LDR) the LDRs of Monroe County in effect at the time of Marathon's incorporation. Marathon is within The Florida Keys Area of Critical State Concern. This case involves a development order that Marathon issued to Respondent Banana Bay of Marathon, Inc. (BB). As Planning Commission Resolution 00-09-04, the development order authorizes BB to add 12 motel rooms to an existing motel in return for imposing certain restrictions on the use of wet slips at its adjacent marina that is part of the same motel/marina development. The restrictions require the removal of cable television connections from 12 slips and limitation upon vessels using these 12 slips to those without plumbing facilities. For the remaining wet slips at the marina, the development order requires BB to limit their use to no more than 18 vessels at one time and to provide mandatory sewage pumpout for these vessels. At various points in the record and this recommended order, references to a "transfer" of 12 marina slips for 12 motel rooms refer to the conditions set forth in this paragraph. BB owns 7.39 acres of upland and 2.67 acres of adjacent bay bottom in Marathon at mile marker 49.5 (Subject Property or, as developed, Banana Bay). The Subject Property runs from U.S. Route 1 to the water. The Subject Property contains 60 motel rooms in two buildings, a conference room, a motel office, support buildings, three apartments suitable for employee use, and a marina. The marina includes 40-50 slips, depending upon the size of the moored vessels. The Subject Property is zoned Suburban Commercial (SC) and Mixed Use (MU). About 2.4 acres (104,544 square feet) running about 350 feet from U.S. Route 1 is SC. About 4.99 acres (217,364 square feet) is zoned MU. The additional 2.67 acres of adjacent bay bottom are also zoned MU, although the submerged acreage is unimportant for reasons discussed below. Twenty-five of the motel rooms are in SC, and 35 of the motel rooms are in MU, although the distinction between zoning districts is also unimportant for reasons discussed below. LDR Code Section 9.5-267 authorizes ten "rooms" per ”acre" as "allocated density" for motel uses in SC and MU and 15 "rooms" per "buildable acre" as "maximum net density" for motel uses in SC and MU. (There is no difference between "hotels" and "motels" in this case; all references to "motels" include "hotels.") Three fundamental questions emerge concerning the application of these two density limitations to this case. The first is whether BB must satisfy both the "allocated density" and "maximum net density" limitation. This is not a difficult issue; BB's proposal must satisfy each of these density limitations. The second question is what is included in the areas under each of these density limitations. Notwithstanding the use of "gross acres" in the "allocated density" formula, it is necessary to net out certain areas--just less than is netted out in the "maximum net density" formula. The third question is what constitutes a "room." When applied to marine-based units, the definition of a "room" presents a difficult and important issue. As a whole, the LDRs imply that no marine-based dwelling units should count as "rooms," but one provision specifically requires the inclusion of "live-aboard" units in density calculations. The first question requires little analysis. As noted below in the discussion of the two types of areas, "allocated density" and "maximum net density" provide two separate measures of the intensity of use of land. The allowable density for "maximum net density" is never less than the allowable density for "allocated density" because "maximum net density" is a safeguard to ensure that, after netting out from the parcel those areas reserved for open space, setbacks, and buffers, the intensity of use will not be excessive. Nothing whatsoever in the LDRs suggests that Marathon may issue a development order for a proposal that satisfies the "maximum net density," but not the "allocated density." These two densities limitations operate in tandem, not in the alternative. The calculation of the "allocated density" requires consideration of the second and third questions identified above. The issue of area seems straightforward. LDR Code Section 9.5-4(D-3) defines "density or allocated density" as "the number of dwelling units or rooms allocated per gross acre of land by the plan." LDR Code Section 9.5-4(D-4) defines "maximum net density" as "the maximum density permitted to be developed per unit of land on the net buildable area of a site, as measured in dwelling units or rooms per acre." LDR Code Section 9.5-4(G-4) defines "gross area" as "the total acreage of a site less submerged lands and any dedicated public rights-of-way." LDR Code Section 9.5-4(N-4) defines "net buildable area" as "that portion of a parcel of land which is developable and is not open space required by section 9.5-262 or 9.5-343 or required minimum bufferyard under article VII division 11 or required setbacks under section 9.5-281." The area of land involved in determining "allocated density" is greater than the area of land involved in determining "maximum net density." But the area of land involved in determining "allocated density" is itself a net amount. The LDRs expressly require reducing the gross areas by any submerged land and dedicated public rights-of-way. However, any reasonable application of the LDRs also requires reducing the gross areas used for the motel "allocated density" calculation by the minimum areas required to support other uses on the Subject Property. If the only use of the Subject Property were motel rooms, the "allocated density" limit of ten units per acre (10:1) would allow 73.9 rooms. But the Marathon Planning Commission Staff Report dated September 18, 2000, correctly netted from the Subject Property the land areas required to support the commercial aspects of the hotel and the commercial apartments. These reductions leave a total of 5.86 acres available to support the motel rooms. At a density of 10:1, the Subject Property could therefore support a total of 58 motel rooms. The Planning Commission incorrectly used the 15:1 ratio for "maximum net density" in concluding that the Subject Property could support a total of 67.65 motel rooms. Evidently, the Planning Commission used the "maximum net density" because it was not using "gross area" or "gross acres" (the terms are synonymous under the Code) in calculating the area. The netting reduction necessary to calculate whether BB's proposal satisfies the "maximum net density" limitation would require the calculation of the area of the Subject Property that must be devoted to open space, setbacks, and buffers. The Planning Commission probably undertook this step in calculating the "maximum net density" for the Subject Property, as its figures seem to include unstated deductions for the 20 percent open space plus another factor, probably for setbacks and buffers--all of which are discussed in its report. However, the Planning Commission erroneously neglected to apply the "allocated density" limitation to the "gross acres," exclusive of submerged land, public rights-of-way, and the minimum land required to support the other upland uses. As noted above, doing so would have yielded no more than 58 motel rooms. At present, the Subject Property contains 60 hotel or motel rooms. The Subject Property therefore cannot support the addition of another 12 hotel or motel rooms, given its "allocated density" of only 58 rooms. In general, BB justifies the addition of 12 rooms to the front motel by arguing that it is only transferring these units from the 12 existing wet slips. It is unnecessary to determine whether a transfer under these facts is lawful when, if these 12 slips count as units, the Subject Property is already 14 units over its "allocated density." The resolution of the third question--what constitutes a "room"--dispenses with this argument. Thirty of the existing 40-50 boat slips in the marina have water, electric, and cable hook-ups and are presently used for some form of habitation. Most vessels berth at the marina for two or three days, although the average stay is slightly over one month. The average stay at the 30 slips offering utilities, though, is two to three months. Typically, two persons use a vessel berthed at the marina for more than a couple of days. BB seals the discharge ports of all vessels mooring at the marina for any appreciable period of time. BB provides a sewage pumpout service for these and other vessels. The wastewater from the marina operations goes to a septic tank, in contrast to the wastewater from the motel operations, which goes to an onsite package plant. Persons mooring at the marina for at least two months normally obtain telephone service and may obtain cable television service, in addition to the potable water and electrical services provided by BB. The marina also provides rest rooms, laundry facilities, showers, a bar, limited food service, and a mail box. However, BB rules require that all persons berthing at the marina register a permanent address because the slips are "not considered permanent housing." At the request of the Florida Keys Aqueduct Authority and the Monroe County Planning Department, BB has limited rental agreements at the marina to a maximum of one month, although some persons enter into back-to-back rental agreements. Persons staying more than one week often have cars. Contrary to BB's contentions, none of these slips provides additional density for the Subject Property, and therefore the 12 slips are not available for transfer to the motel. For the same reason, as discussed below, the proposed transfer of the 12 units would also violate the Rate of Growth Ordinance (ROGO). In two respects, the record reveals that the conversion of marine-based residential uses to upland residential uses might facilitate the achievement of important land use planning objectives. First, the wastewater collected from the marina is directed to a septic tank, and the wastewater collected from the motel is directed to a package plant. Absent a significantly reduced flow from the marine-based residential use, the upland residential use would therefore impact the adjacent waters to a lesser extent. Second, marine-based residential users may be more reluctant to evacuate for an approaching hurricane than upland residential users. Absent a significantly greater number of visitors during hurricane season if the 12 units were taken from the marina slips and added to the motel, the upland residential use might therefore facilitate timely hurricane evacuation of the vulnerable Keys. However, the record was relatively undeveloped on these two points, and these possible advantages to the conversion of marine-based residential uses to upland-based residential uses do not override the LDRs. The LDRs may treat the more intense residential use associated with "live-aboards" differently than the less intense residential use associated with other moored vessels. Although the LDRs' treatment of "live-aboards" may not be entirely consistent, any inconsistency is irrelevant in this case because the moored vessels at the Banana Bay marina do not qualify as "live-aboards." As stipulated for the purpose of this case, LDR Code Section 9.5-4(T-4) defines a "transient residential unit" as "a dwelling unit used for transient housing such as a hotel or motel room, or space for parking a recreational vehicle or travel trailer." LDR Code Section 9.5-4(D-31) defines a "dwelling unit" as "one (1) or more rooms physically arranged to create a housekeeping establishment for occupancy by one (1) family with separate toilet facilities." LDR Code Sections 9.5-4(D-23) through 9.5-4(D-30) identify the various types of dwellings that may contain "dwelling units.” These dwellings are, respectively, detached zero-lot-line dwellings, multifamily apartment dwellings, attached dwellings, detached individual dwellings, duplex dwellings, commercial apartment dwellings, rooftop dwellings, and townhouse dwellings. The frequent references to "open yards" in these definitions precludes the application of these definitions to moored vessels, even "live- aboards." The exclusion of all moored vessels, including "live-aboards," from density calculations is also suggested by two other portions of the LDRs. As is typical, LDR Code Section 9.5-120.1 provides that the mechanism for enforcing density limitations is in the issuance of building permits, but this enforcement mechanism is of doubtful use in regulating vessel moorings, which do not typically involve the issuance of a building permit. Also, the density definitions discussed above both refer to the development of various types of residential uses on "land." Moreover, none of the zoning districts established in Marathon's LDRs measures the intensity of marina uses, including vessels moored for extended periods as live-aboards, by imposing some sort of marine density limitation, either by including the moored dwelling units or the submerged acreage. Because the LDRs did not intend to include such marine-based uses in density calculations, LDR Code Section 9.5-267, which is a table setting forth "allocated densities" and "maximum net densities," covers only upland-based uses, including recreational vehicle or campground spaces per acre, and does not extent to marine-based uses, such as live-aboard marina slips. However, two provisions in the LDRs require density calculations to include "live-aboards." LDR Code Section 9.5-308, which seems to be an older provision in the LDRs, provides that "each live-aboard shall count as a dwelling unit for the purpose of calculating density limitations in the district in which it is permitted." Better incorporated into the present regulatory scheme of the LDRs, LDR Code Section 9.5-120.1 defines a "residential dwelling unit" as a "dwelling unit," including a "transient rental unit," as defined in LDR Code Section 9.5-4(T-3), and "live-aboard vessels," as defined in LDR Code Section 9.5-4(L-6). However, LDR Code Section 9.5-4((L-6) states that a "live-aboard vessel" is "any vessel used solely as a residence or any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence." The record does not suggest that any of the moored vessels were used "solely" as a residence, as distinguished, for instance, from a vessel used for residential and recreational purposes, or that any of the mixed-use vessels served as the occupants' legal residence. Absent a finding that the moored vessels constitute "transient residential units," ROGO does not support this proposed transfer of residential uses from marine-based to upland-based. LDR Code Section 9.5-123(f)(3) authorizes the transfer of an existing "residential dwelling unit" from one site to another within the same subarea. However, LDR Code Section 9.5-122 defines a "residential dwelling unit" to extend only to "live-aboards." For the reasons already discussed, the less intense residential uses associated with the vessels moored at Banana Bay's marina preclude their treatment as "residential dwelling units" eligible for transfer to the motel. Petitioner has proved that the development order is materially inconsistent with the LDRs. LDR provisions governing the density and intensity of residential development go to the heart of effective land use planning, especially in an area as sensitive as the Keys. For these reason, it is unnecessary to consider the consistency of the development order with the more general provisions of Marathon's comprehensive plan, on which Marathon's LDRs are based.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying the request of Banana Bay of Marathon, Inc., to approve the transfer of 12 slips to 12 rooms in a motel on the Subject Property. DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2001. COPIES FURNISHED: Barbara L. Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Mitchell A. Bierman Weiss Serota 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 James S. Mattson James S. Mattson, P.A. Post Office Box 586 Key Largo, Florida 33037
Findings Of Fact The Parties. Petitioner, the Environmental Coalition of Broward County, Inc. (hereinafter referred to as the "Coalition"), is a Florida corporation. The Coalition has offices located in Broward County. The Coalition has approximately 500 members, most of whom reside in Broward County. A substantial number of the Coalition's members own property in Broward County and/or operate businesses within Broward County. The Coalition is a not-for-profit corporation, chartered for educational and scientific purposes. The primary purpose of the Coalition is to present objections and recommendations to local governments concerning planning issues on behalf of its membership. The Coalition is authorized to participate in actions of this type and to represent its membership in administrative proceedings. The Coalition presented oral and written objections to Broward County during the review and adoption process concerning the plan amendment at issue in this proceeding. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is the state agency charged with the responsibility of implementing the Local Government Comprehensive Planning and Land Development Act, Chapter 163, Part II, Florida Statutes (hereinafter referred to as the "Act"). Among other things, the Department is required to review local government comprehensive plans and amendments thereto for compliance with the Act. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government with the authority pursuant to the Act and the Broward County Charter to adopt and amend a comprehensive plan. The County has adopted the 1989 Broward County Comprehensive Plan (hereinafter referred to as the "Plan"). The Broward County Board of County Commissioners (hereinafter referred to as the "County Commission"), is the local planning agency for the County. The County Commission is advised on land use planning issues by the Broward County Planning Council (hereinafter referred to as the "Planning Council"). The Planning Council was created by the County Charter. Intervenors, Miramar Lakes, Inc., d/b/a Miramar Rock, Robert A. Whitcombe, Trustee, and the South Broward Trust own or have under contract virtually all of the property affected by the Plan amendment which is the subject of this proceeding. These Intervenors have entered into a joint venture agreement with Intervenor Atlantic Gulf Communities Corporation to develop the subject property. Intervenors applied for the amendment that is the subject of this proceeding and presented oral or written comments, recommendations and objections during the period of time between the transmittal hearing and adoption of the subject Plan amendment. The County's Plan. The County adopted a comprehensive plan as required by the Act in 1989. The planning horizon of the plan is 2010. The Plan includes two volumes of text, two volumes of support documents and associated maps. See Petitioner's exhibit 8. Volume One is text and is effective countywide. Volume Three contains support documents for the Plan. The Plan also includes the 1989 Broward County Future Land Use Plan Map (Series) (hereinafter referred to as the "FLUM"). The FLUM depicts the proposed distribution, extent and location of categories of land uses allowed under the Plan. Among others, those land uses include "residential" at various densities and "agricultural". Pursuant to the Plan, the eastern approximately one-third of the County may be developed. The developable area consists of approximately 400 square miles of land area. The western approximately two-thirds of the County are designated as water conservation areas and are separated by a levee from the developable one- third. Future land use elements of municipal comprehensive plans in the County must be in substantial conformity to the Plan. The Subject Property. The property which is the subject of the Plan amendment at issue in this case consists of 1,280 acres of a total of 1,965 acres (hereinafter referred to as the "Property"). The Property is located in the City of Miramar, in southwest Broward County, Florida, Sections 25, 26, 27 and 36, Township 51 South, Range 39 East. The Property is located in the southwestern portion of the developable one-third of the County. See Map 1 of Broward County exhibit 1. The Property is bounded on the east by S.W. 184th Avenue and on the north by Honey Hill Road. It is east of U.S. Highway 27. Part of the Property is vacant. Part of the Property is being used as cattle pasture and for a rock mining, batching, mixing and crushing operation. Existing land uses in the vicinity of the Property include vacant land, rock mining and some development to the north, single-family residential development to the east, rock mining and vacant land to the south, in Dade County, Florida. Residential development immediately to the east in a development known as "Silverlakes" is being developed at a density of three dwelling units per acre. Further to the west of the Property is the eastern boundary of the water conservation areas of the Everglades. These areas are separated from the rest of Broward County by a levee. The land use designation of the Property and other property in the surrounding area is "agricultural". Under the Plan, the land use designation allows agricultural uses and residential development of one dwelling per 2.5 acres. Under its current land use designation, a total of 786 dwelling units may be developed on the Property. The First Amendment Requested by the Intervenors. In early 1994 Intervenors filed an application with the County seeking an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Low (2) Residential". "Low (2) Residential" allows the development of two dwelling units per acre. The Planning Council conducted a review of the proposed amendment. The Broward County Department of Natural Resource Protection raised objections to the proposed amendment because the Property is located in an area of water recharge and wetlands. The area is identified as within a general wetlands area on the "Southwestern Generalized Wetlands Map" of the Plan. 30 Based upon the objections of the County Department of Natural Resource Protection, the staff of the Planning Council recommended denial of the proposed amendment. The South Florida Water Management District (hereinafter referred to as the "SFWMD"), an agency with broad regional responsibility for water management in southeast Florida, raised objections with the Planning Council concerning the location of the property in an area which was being considered for use as part of a project to restore the Everglades. The SFWMD was concerned that the Property is located within an area which has come to be known as the "East Coast Buffer". In early 1994, at the time of the initial review of the proposed amendment, the East Coast Buffer was a study area abutting the eastern water conservation areas of southeast Florida. The SFWMD was studying the East Coast Buffer for use in water conservation efforts in southeast Florida. At the time of the first review of the proposed amendment, the portion of the East Coast Buffer in which the Property is located was being considered for preservation as a reservoir site. The Planning Council transmitted the proposed amendment to the County Commission without recommendation. The County Commission decided not to transmit the proposed amendment to the Department for its review, ending review of the initial application. The Initial Review of the Subject Amendment. A second application on the Property was resubmitted by the Intervenors in March of 1994. The application was designated Application PC 94- 15. Application PC 94-15 sought an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Irregular 1.5 Residential". "Irregular 1.5 Residential" allows 1.5 dwelling units per acre. The amendment sought by Intervenors would have allowed an increase from 786 dwelling units to 2,947 dwelling units on the Property. An increase of 2,161 units. Application PC 94-15 was again reviewed. The same comments about, and objections to, the proposed amendment were raised concerning groundwater and aquifer recharge. The staff of the Planning Council again recommended denial of the proposed amendment. 41 The Planning Council recommended transmittal of the application, subject to the Intervenors satisfying the concerns raised by the SFWMD. On August 17, 1994, the County Commission transmitted Application PC 94-15 to the Department, conditioned upon the Intervenors satisfying the concerns of the SFWMD. The SFWMD objected to Application PC 94-15 because of its conclusion that the proposed future land use designation was not compatible with the East Coast Buffer then under evaluation by the SFWMD. SFWMD had developed data and conducted computer modeling concerning the utilization of a buffer for a variety of purposes, including reducing seepage of water from the Everglades, increasing groundwater recharge into aquifers and creating a natural buffer to protect the Everglades from the impacts of development. The SFWMD had commissioned a worldwide engineering firm, CH2M Hill to prepare a report on the East Coast Buffer. The SFWMD recommended that Application PC 94-15 not be approved until it had completed its study of the East Coast Buffer because the land use designation being sought might be incompatible with the conclusions reached from the SFWMD's and CH2M Hill's evaluation. The Department reviewed Application PC 94-15 and, based upon comments from the SFWMD similar to those raised before the County Commission, issued an Objections, Recommendations and Comments report concerning Application PC 94-15. The Department raised objections consistent with the adverse comments from the SFWMD. Modification of the Proposed Amendment. Parts of southwestern Broward County and northwestern Dade County were designated "Management Unit 5" by the SFWMD. Management Unit 5 was being considered, as recommended by CH2M Hill, as a reservoir area. Development of the Property was, therefore, not considered to be a use comparable with the concept of the East Coast Buffer being considered by the SFWMD at the time of the County's and Department's decision to reject Application PC 94-15. Intervenors worked with the SFWMD in an effort to find a way of modifying Application PC 94-15 to satisfy the SFWMD's concerns. SFWMD utilized computer modeling to simulate groundwater and surface water flows in Management Unit 5 to determine the impact of allowing development of the Property. The SFWMD concluded that Management Unit 5 was more suitable as a recharge area rather than as a reservoir. This conclusion was based, in part, of the transmissibility of the soil and other site conditions which were not conducive to storing water above ground for long periods of time. Use of Management Unit 5 as a recharge area and not a reservoir requires less surface area. Therefore, it was concluded that development in the area might be compatible with the SFWMD's East Coast Buffer concept. The SFWMD modeled four development alternatives for Management Unit 5 and analyzed the impact of each alternative on the efforts to retard seepage, provide groundwater recharge and enhance wetland benefits: (a) retaining the Property as a recharge area and allowing no development; (b) retaining the entire western two-thirds as a recharge area and allowing development of the eastern one-third; (c) retaining the western one-third as a recharge area and allowing development of the eastern two-thirds; and (d) allowing development of the entire management unit. Alternatives (b) and (c) assumed that a berm would be constructed between the recharge area and the developed area. After meeting with Intervenors and discussing the results of the modeling, Intervenors indicated willingness to remove the western portion of the Property from the proposed development. The SFWMD then conducted a more detailed, computer analysis of the following alternatives: (a) continuing existing conditions; (b) constructing a berm around Management Unit 5 and utilizing the entire area as a recharge area; (c) constructing a berm between the eastern and western sections of the Management Unit 5 and utilizing the western section for recharge with no development in the eastern section; and (d) alternative "(c)" with development of the eastern section. As a result of computer modeling of the alternatives, it was concluded that alternatives (b), (c) and (d) could significantly reduce seepage from the Everglades and increase groundwater recharge in to the aquifers when compared to development under the agricultural land use designation of alternative (a). As a result of the more detailed analysis, the SFWMD concluded that essentially all of its goals could be achieved for Management Unit 5 if the western section of Management Unit 5 is preserved even if development is allowed in the eastern section. The SFWMD concluded that the eastern two-thirds of the Property, consisting of approximately 1,280 acres, could be developed as "Irregular 1.5 Residential" if the western one-third, consisting of approximately 685 acres, was utilized as a recharge area. Intervenors agreed to preserve the western third of the Property (685 acres) and grant the SFWMD a flowage easement, consistent with the East Coast Buffer and at a savings of $43 million. On December 14, 1994, the staff of the SFWMD presented the results of the computer modeling to the SFWMD. On December 15, 1994, the SFWMD withdrew its objection to Application PC 94-15, conditioned upon the deletion of the 685 acres from the application and the granting of a flowage easement. The County and the Department were informed of the decision of the SFWMD. Approval of Application 94-15. On December 20, 1994, the County Commission adopted by Ordinance 94-55 an amendment to the Plan, Amendment PC 94-15 (hereinafter referred to as the "Amendment"), subject to the conditions suggested by the SFWMD, which resolved the SFWMD's objections. The Amendment included modifications to the FLUM and text amendments. The Amendment, in relevant part, modifies the future land use designation of approximately 1,280 acres of the Property from "Agricultural" to "Irregular 1.5 Residential". This will allow the construction of a total of 1,920 dwelling units on the Property, or an increase of 1,408 dwelling units over the number of dwelling that may be constructed under the current future land use designation for the Property. In light of Intervenor's modifications of the application, the removal of the SFWMD's objections and the approval of the application by the County, the Department found the Amendment to be in compliance with the Act. On February 14, 1995, the Department issued a notice of intent to find the Amendment in compliance. The County and the Department accepted and relied upon the data and methodology employed by the SFWMD and the conditions for removal of the SFWMD's objections. Petitioner's Challenge. On or about March 8, 1995, Petitioner filed a Petition for Formal Administrative Hearing with the Department challenging the Amendment. Petitioner filed an Amended Petition on April 25, 1995. At the commencement of the final hearing, Petitioner withdrew all issues it had raised in the Amended Petition except the issues of: (a) whether the data and analysis available supports a conclusion that there is a need for additional residential development; and (b) whether the Amendment is supported by data and analysis in light of an ongoing study of the East Coast Buffer. Residential Housing Need. The Plan includes the following Goal and Objective concerning the provision of adequate areas for residential use: Goal 01.00.00 Provide residential areas with a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a desired quality of life and adequate public services and facilities. Objective 01.01.00 Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. The Plan, including the methodology utilized to determine residential need, was found to be in compliance by the Department. The residential need methodology of the Plan utilized the Broward County Population Forecasting Model to project the population of southwest Broward County in 1994 to be 225,489 people. This projected population formed the basis for the allocation of residential housing units for Subregion 5 under the Plan. The Property is located in an area of southwest Broward County designated as Subregion 5 in the Plan. In reviewing the Amendment, the County conducted an analysis of the need for additional residential development in southwest Broward County. This analysis utilized, and was consistent with, the residential need methodology of the Plan. A summary of the data and analysis utilized by the County was provided to the Department. The County's analysis indicated that the population of Subregion 5 has exceeded the population projections for the Subregion of the Plan. By 1994, there were 284,361 people living in Subregion 5 or 17,872 more than projected in the Plan. The increased population rate of growth in Subregion 5 was projected to represent an increase in projected demand for approximately 6,847 residential units in excess of the projected demand expected under the Plan. The analysis also took into account amendments to the Plan which have resulted in a reduction of 1,087 residential units for Subregion 5. When combined with the increased population, the data and analysis supports a conclusion that there is a need for 7,934 additional residential units in Subregion 5. The Amendment increases residential housing in Subregion 5 by 1,134 dwelling units (1,920 units allowed under the Amendment, less 786 dwelling units allowed under the current agriculture classification), well below the projected need for additional residential units for Subregion 5. The data and analysis relied upon by the County and submitted to the Department supports the conclusion of the County that there is need for the proposed additional residential development approved by the Amendment. The data and analysis relied upon by the County and the Department was professionally acceptable and adequate to support the Amendment. The evidence presented by Petitioner failed to prove that the data and analysis relied upon by the County and the Department was not professionally acceptable and adequate. Rather than attempting to prove that the County's methodology was not professionally acceptable or was flawed, Petitioner utilized a methodology based upon an annualized population growth rate for Subregion 5. Petitioner offered evidence that there is sufficient residential housing approved under the Plan to meet the projected population for 15.6 years, beyond the remaining life of the Plan. The methodology utilized by Petitioner was, by the admission of the Petitioner's own witness, not a professionally acceptable methodology. The evidence failed to prove that the data and analysis relied upon by the County does not support its conclusion that there is sufficient need for the additional residential housing authorized for the County by the Amendment. The East Coast Buffer Zone. Efforts to restore the Everglades have been initiated and are ongoing. As a part of these efforts a group of technical and scientific staff members of various federal agencies involved in the restoration efforts were formed as the "Science Sub Group." The Science Sub Group was formed as an advisory group to provide guidance towards ecosystem restoration efforts. The Science Sub Group had no implementing authority. It issued at least one report in late 1993 which included an East Coast Buffer concept. The East Coast Buffer identified by the Science Sub Group included the area in which the Property is located. The Science Sub Group relied upon data obtained from the SFWMD and various computer models developed by the SFWMD, and SFWMD personnel contributed to the preparation of the report. The East Coast Buffer concept generally includes a series of interconnected water flow-ways along the eastern edge of the water conservation areas necessary to restore the Everglades. The federal government has also instituted a study known as the "Central & South Florida Project: Comprehensive Review Study" (hereinafter referred to as the "Restudy"). The United States Corps of Engineers is the lead agency of the Restudy. The first phase of the Restudy's efforts has resulted in a "Reconnaissance Report", also known as the "Recon Study". The second phase of the Restudy's efforts will be the feasibility phase. The feasibility phase will begin in the summer of 1995 and will be completed several years later. The purpose of the Restudy is to bring together the interested federal agencies to review the current management of the Everglades and identify strategies for altering management practices and systems to improve the Everglades. The Recon Study was completed in late 1994. It describes various conceptual strategies for restoring the Everglades. The determination of the feasibility of the strategies has not, however, been started, much less completed. Therefore, although the East Coast Buffer concept is considered in the Recon Study, the actual identification of the area which will constitute the Buffer has not been identified. Nor has the area which should constitute the East Coast Buffer been recommended in the Recon Study. The Recon Study identifies problems and opportunities, formulates alternative plans, evaluates conceptual alternative plans and recommends further study. The Recon Study is advisory. It does not identify, recommend or implement a plan of action. The Coalition presented evidence concerning the ongoing analysis of Everglades restoration efforts. That evidence proved that the Property is located within a very large area, which completely surrounds the Everglades, which is being considered as part of the Everglades restoration effort because of the impact of this large area on restoration efforts. The evidence presented by the Coalition, however, failed to prove that the Property has been, or will be, determined to be essential or even necessary for future Everglades restoration efforts. At the time of the approval of the Amendment and, even at the time of the final hearing of this case, no such determination had been made. Nor had any determination been made as to what will be necessary for the restoration of the Everglades or whether decisions will be made to carry out the necessary restoration efforts. As recognized by the Coalition in its proposed order: 52. The study necessary to make [a determination of the water levels needed] for the areas which are implicated by this amendment will be done in the next two years or three years. * * * 55. There is no way of telling, based on the data and analysis available at this point, how much water will be necessary in order to fully restore the Everglades. . . . Coalition proposed findings of fact 52 and 55. The Coalition also recognized the following: The Reconnaissance study has not reached the point where conclusions can be drawn about parcel specific uses. The next step is the feasibility planning phase, which is a much more detailed phase which will run for several years. . . . Coalition proposed finding of fact 107. Instead of attempting to prove that the data and analysis at the time of adoption of the Amendment indicated that development of the Property authorized by the Amendment would be detrimental to restoration efforts, the Coalition attempted to prove that development of the Property should be delayed until data and analysis is available indicating conclusively what the impact of development of the Property will be on restoration efforts. The Act does not require such delay. In addition to failing to prove what the impact of development of the Property will be on restoration efforts, the evidence presented by the Coalition also failed to prove that the conclusions reached by the Science Sub Group and the Restudy will even be implemented. The evidence presented by the Coalition failed to prove that the conclusions of the SFWMD with regard to the impact of the Amendment are not supported by data and analysis or were not arrived at by professionally acceptable methods. While the evidence proved that there will be some reduction in the amount of groundwater recharge function and seepage control function as a result of the Amendment, the evidence failed to prove what ultimate impact the reductions in recharge and seepage control will be or that the SFWMD's conclusions are not reasonable. While the Coalition proved that the SFWMD's conclusions were not based upon a consideration of what should be done to restore the Everglades, the evidence failed to prove that the information available was sufficiently conclusive that the SFWMD should have objected to the Amendment. The data and analysis relied upon by the County in approving the Amendment was collected and applied in a professionally acceptable manner. None of those agencies charged with responsibility to review the Amendment raised objections to its approval. The evidence failed to prove that the state of the data and analysis available to the County from the Science Sub Group and the Restudy or any other source concerning the area referred to as the East Coast Buffer and the Property is such that it proved that the data that was relied by the County upon was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department dismissing finding the Amendment "in compliance" and dismissing the petition in this case. DONE AND ENTERED this 19th day of July, 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 19th day of July, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Coalition's Proposed Findings of Fact Accepted in 1-2. Accepted in 2. 3-4 Accepted in 3. Accepted in 4. Accepted in 5 Accepted in 4. Accepted in 5. Accepted in 4-6. Accepted in 5-6. Accepted in 6. Hereby accepted. Accepted in 12 14-15 Not relevant. 16-18 Not relevant. See 81-84. 19-25 Not relevant and not supported by the weight of the evidence. See 81-84. Accepted in 29. Not supported by the weight of the evidence. Hereby accepted. Accepted in 26 and hereby accepted. 30-31 See 24. Accepted in 26. Accepted in 36 and 62. Accepted in 62. 35-41 Hereby accepted. 42-48 These proposed findings are generally correct. They are not, however, relevant to the ultimate determination in this case. 49-50 Too speculative. Not supported by the weight of the evidence. The first sentence is hereby accepted. The last sentence is not relevant. See 96. Not supported by the weight of the evidence and not relevant. Not supported by the weight of the evidence. The first sentence is accepted in 96. The last sentence is not relevant. Hereby accepted. 57-63 Too speculative. Not supported by the weight of the evidence. 64-65 Not relevant. Hereby accepted. Accepted in 89 and 91 and hereby accepted. Accepted in 90 and 92. See 86 and 92. Hereby accepted. Although generally true, the evidence failed to prove that this finding specifically applies to the Property. Except for the first sentence, not supported by the weight of the evidence. Hereby accepted. Accepted in 31-33. Not supported by the weight of the evidence. 76-87 Although generally correct, these findings were too broad and the evidence failed to prove that they specifically apply to the Property. 88-90 Although generally correct, these proposed findings are not relevant. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. Too speculative. Not supported by the weight of the evidence. 94-97 Although generally correct, these proposed findings are not relevant. 98 Too speculative. Not supported by the weight of the evidence. 99-100 Not relevant. Hereby accepted. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. 104-105 Not relevant. Too speculative. Not supported by the weight of the evidence. Accepted in 97. Accepted in 90. Too speculative. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 111-114 Too speculative. Not supported by the weight of the evidence. The County's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 7. 3 Accepted in 8. 4 Accepted in 11. 5 Hereby accepted. 6 Accepted in 12. 7 Accepted in 13. 8 Accepted in 14. 9 Accepted in 15. 10 Accepted in 9-10. 11 Accepted in 18. 12 Accepted in 16. 13 Accepted in 17. 14 Accepted in 61. 15 Accepted in 60. 16 Accepted in 19-20, 26 and 62. 17 Accepted in 23. 18 Accepted in 21-22 19-20 Accepted in 24. 21 Hereby accepted. 22 Accepted in 37. 23-24 Hereby accepted. 25 Accepted in 68. 26 Accepted in 65-67. 27-28 Accepted in 67. 29-30 Hereby accepted. 31-32 Accepted in 28. 33 Accepted in 29. 34 Accepted in 30. 35 Accepted in 34. 36 Accepted in 31 and hereby accepted. 37 Accepted in 32-33. 38 Accepted in 31. 39 Accepted in 33. 40 Accepted in 35. 41 Accepted in 316. 42 Accepted in 37. 43 Accepted in 39. 44 Accepted in 40. 45 Accepted in 41. 46 Accepted in 42. 47 Accepted in 72. 48-49 Hereby accepted. Accepted in 73-77 and hereby accepted. Accepted in 76-77. Accepted in 38. Accepted in 79-80 Accepted 58 and 62. 55-57 Hereby accepted. Accepted in 82. Hereby accepted. 60-61 Accepted in 81-84. 62 Hereby accepted. 63-65 Accepted in 46 and hereby accepted. Accepted in 43 and 45. Accepted in 88. Accepted in 89-90. 69-70 Accepted in 85-86. 71 Accepted in 90 and 92-93. 72-77 Hereby accepted. Accepted in 32 and 44. Hereby accepted. None proposed. Accepted in 33. Hereby accepted. Accepted in 50. Accepted in 51. Accepted in 49 and hereby accepted. Hereby accepted. 87-88 Accepted in 52. 89-90 Hereby accepted. Accepted in 53 and 58 and hereby accepted. Accepted in 54. Accepted in 56. Accepted in 58. 95-96 Accepted in 59. Accepted in 60. Accepted in 61. The Department's and Intervenors' Proposed Findings of Fact Accepted in 1. Accepted in 7. Accepted in 8. Accepted in 11. Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 9-10. Accepted in 18. Accepted in 16. Accepted in 17. Accepted in 61. Accepted in 11 and 19-20. Accepted in 20. Accepted in 23. Accepted in 24-25. Accepted in 26. Accepted in 27. Accepted in 36-38. 22-37 Hereby accepted. Accepted in 43. Accepted in 88. Hereby accepted. Accepted in 31. 42-43 Accepted in 44. Accepted in 43 and hereby accepted. Hereby accepted. Accepted in 42. Accepted in 42 and 46. Accepted in 46 and hereby accepted. Accepted in 46. Accepted in 50. Accepted in 46. 52-53 Accepted in 48. Accepted 49. Accepted in 49, 52 and 54. Accepted in 50. Accepted in 51. Accepted in 54 and 57. 59-60 Accepted 54. 61-63 Accepted in 54 and hereby accepted. Accepted in 55. Accepted in 56-57. 66-67 Accepted in 58. 68-70 Accepted in 59. Accepted in 64. Accepted in 58 and 62. Accepted in 60 and 62. Accepted in 63. Accepted in 67. Hereby accepted. Accepted in 67 and hereby accepted. Accepted in 37 and hereby accepted. Not relevant. Accepted in 86. Hereby accepted. 82-83 Accepted in 86. Accepted in 87. Accepted in 89 and hereby accepted. Accepted in 90. Accepted in 90 and 92-93. Accepted in 93. 89-90 Hereby accepted. Not supported by the weight of the evidence. Accepted in 72-78. Accepted in 69-71. Accepted in 70. Accepted in 73-74 and hereby accepted. Accepted in 75. Accepted in 76. Accepted in 77. Accepted in 78. Accepted in 79-80. 101-102 Accepted in 82. Accepted in 83. Accepted in 83-84. Accepted in 81 and 84. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Brion Blackwelder, Esquire Jack Milbery, Esquire 8751 West Broward Boulevard, #206 Plantation, Florida 33324 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Tracy Lautenschlager, Esquire Broward County Attorney's Office 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Glenn Smith, Esquire Michael A. Cohn, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Boulevard Post Office Box 1900 Fort Lauderdale, Florida 33302 Honorable Gerald F. Thompson Chairman, Broward County Board of County Commissioners Governmental Center 115 South Andrews Avenue Fort Lauderdale, Florida 33301
The Issue Whether the Department of Community Affairs (Department) should be precluded from prosecuting the instant challenge to the Comprehensive Development Master Plan (CDMP) of Metropolitan Dade County (Metro-Dade, Dade County or County), as amended by Ordinance No. 90-28, on the ground that it did not comply with the statutory prerequisites to instituting such a challenge? Whether the Redland Citizens Association, Inc., the Sierra Club, the League of Women Voters, Evelyn B. Sutton, Martin Motes, Frances L. Mitchell, Rod Jude, Bruce Rohde and Carol Rist (hereinafter referred to collectively as "the Objectors") are "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to intervene in this matter and pursue their challenge to the CDMP, as amended by Ordinance No. 90-28? Whether Carol Rist's motion to amend her petition for leave to intervene in this matter should be granted? Whether the challenged amendments made to the CDMP through the adoption of Ordinance No. 90-28, specifically those resulting from the approval of Applications 39, 40 and 47, have rendered the CDMP not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes? Whether John H. Wellenhofer is entitled to an award of fees and costs against the Department pursuant to Section 163.3184(12), Florida Statutes?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Metropolitan Dade County: A General Overview Metropolitan Dade County is one of Florida's coastal counties. It is located in the southeastern part of the state and is bordered by Broward County on the north, by Monroe County on the south and southwest, by Collier County on the northwest and by the Atlantic Ocean on the east. Within the boundaries of Metropolitan Dade County are 1,413,629 acres, or approximately 2,209 square miles, of land and water. The major natural features of the County are the Florida Everglades National Park, tropical vegetation, an Atlantic Ocean coastline with several peninsulas and inlets, including Biscayne National Park at Biscayne Bay, and several barrier islands and reefs. The County contains several bodies of water, including various lakes, rivers and streams. Among the most noteworthy water bodies are the Intracoastal Waterway in the eastern part of the County and the expansive wetland systems and their accompanying wildlife habitat located primarily in the western part of the County. Among the major man-made features of the County are I Florida Turnpike, the Metrorail System, canals, causeways connecting Miami Beach and the barrier islands to the mainland, Miami International Airport, Kendall Airport, and Homestead Air Force Base. Metropolitan Dade County is Florida's most populous county with a population approaching two million people. On average, Dade County's population has grown by approximately 36,000 persons per year since the 1970's. There are 26 incorporated municipalities located in Metropolitan Dade County, including the City of Miami, whose downtown area may be viewed as the principal focal point of the entire metropolitan area. Metropolitan Dade County Home Rule Amendment, Charter and Selected Ordinances In 1956, the statewide electorate adopted Article VIII, Section 11 of the 1885 Florida Constitution granting "the electors of Dade County, Florida, . . . power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body." 4/ The following year, the electors of the County adopted such a home rule charter (Charter). Section 1.01 of the Charter provides that the "Board of County Commissioners shall be the legislative and governing body of the county and shall have the power to carry on a central metropolitan government." The power to "[p]repare and enforce comprehensive plans for the development of the county" is expressly mentioned in Section 1.01 as within the Board's authority. Other powers of the Board specifically enumerated in Section 1.01 include the power to provide, regulate, develop and enforce master plans for the control of traffic; to provide and regulate sewage collection and disposal, waste collection and disposal and water supply programs; to establish and administer drainage programs; to establish and administer conservation programs; and to establish and administer housing programs. Section 4.07 of the Charter establishes a Department of Planning as a unit of central metropolitan County government. This section provides as follows: The department of planning shall be headed by a planning director appointed by the County Manager. The planning director shall be qual- ified in the field of planning by special training and experience. Under the supervision of the Manager and with the advice of the Planning Advisory Board elsewhere provided for in this Charter, the planning director shall among other things: Conduct studies of county population, land use, facilities, resources, and needs and other factors which influence the county's development, and on the basis of such studies prepare such official and other maps and re- ports as, taken together, constitute a master plan for the welfare, recreational, economic, and physical development of the county. Prepare for review by the Planning Advi- sory Board, and for adoption by the Board of County Commissioners, zoning, subdivision, and related regulations for the unincorporated areas of the county and minimum standards governing zoning, subdivision, and related re- gulations for the municipalities; and prepare recommendations to effectuate the master plan and to coordinate the county's proposed capital improvements with the master plan. Review the municipal systems of planning, zoning, subdivision, and related regulations and make recommendations thereon with a view to coordinating such municipal systems with one another and with those of the county. By ordinance, codified in Section 2-106.1 of the Code of Metropolitan Dade County, the Department of Planning has been designated as the County's local planning agency "responsible for the preparation of the Comprehensive Development master plan for the county." Section 4.08(A) of the Charter directs the Board of County Commissioners to, "by ordinance create a Planning Advisory Board." The Board has done so. The Planning Advisory Board (PAB), as established by the Board, is a nine-member body. The members of the PAB are citizens appointed by the Board. Section 5.02 of the Charter describes the powers that may be exercised by the County's municipalities. It provides as follows: Each municipality shall have the authority to exercise all powers relating to local affairs not inconsistent with this Charter. Each municipality may provide for higher standards of zoning, service and regulation than those provided for by the Board of County Commis- sioners in order that its individual character and standards may be preserved for its citizens. Comprehensive Planning in the County: An Historical Perspective Metropolitan Dade County's first Comprehensive Development Master Plan was adopted by the Board in 1965. This initial version of the CDMP was based upon the unrealistic projection that the County would have two and one half million residents at the planning horizon. To accommodate this projected population, it provided for a spread pattern of low density residential growth, served by numerous expressways. Substantial changes to the CDMP were made in 1975 based upon a lower, more realistic population projection and a consideration of environmental and infrastructure constraints. The result was a plan that provided for a more compact form of urban development concentrated around nodes of activity in the eastern portions of the County. The 1975 version of the CDMP introduced the concept of an urban development boundary. The urban development boundary (UDB) was, and remains to this date, an important part of the plan's urban containment strategy. As its name suggests, the UDB is a line drawn on the plan's future land use map (FLUM) that indicates where urban development will be permitted to reach by the end of the planning period. Since 1975, the CDMP has been amended on various occasions. On eight of these occasions, including most recently in 1990, the amendments have included an expansion of the area inside the UDB. As a result of these amendments, the area inside the UDB has increased by more than 32,000 acres. Notwithstanding the various amendments that have been made to the CDMP, its overall approach, focus and direction have remained essentially the same since 1975. Since 1975, the CDMP's policies have "encourage[d] in-filling, redevelopment, and contiguous development in order to lessen urban sprawl and the associated transportation and energy costs." For years, the CDMP has required the coordination of development with services, the protection of agriculture as a viable economic use of land, the encouragement of a broad spectrum of housing allowing for choice of location, the protection of communities from encroachment by incompatible uses, and a wide variety of other goals, objectives and policies which remain the foundation of the CDMP. The 1988 CDMP In December 1988, the Board of County Commissioners adopted Ordinance No. 88-110 entitled "The Master Plan Amendatory Ordinance" (Amendatory Ordinance). The Amendatory Ordinance revised and reformatted the CDMP in an effort to comply with changes made to the state's growth management laws in 1985. The CDMP's primary planning horizon was extended by the Amendatory Ordinance to the year 2000. Like the current version, the version of the CDMP adopted in 1988 (1988 CDMP) had an statement of legislative intent and the following eleven separate elements, containing goals, objectives and policies and other textual material, as well as maps depicting future conditions, including a future land use map: land use; traffic circulation; mass transit; port and aviation; housing; conservation; water, sewer and solid waste; recreation and open space; coastal management; intergovernmental coordination; and capital improvements. Prior to the adoption of the Amendatory Ordinance, the County's Planning Department prepared a "support component," containing background data and analyses, for each of the foregoing elements. These "support components" were used in the formulation of the 1988 CDMP and they were transmitted to the Department of Community Affairs for the Department's consideration during the compliance review process. The 1988 CDMP: Land Use Element "Support Component" The "support component" for the 1988 CDMP land use element (LUSC) was a 232-page document that analyzed existing and future land uses in Dade County, including the amount of land that would be needed and available to accommodate anticipated growth, the County's projected population, the environmental characteristics of the County's undeveloped land, the availability of urban services in the County, and those areas in need of redevelopment. According to the LUSC, as of 1985, of the County's 1,413,629 acres, 86,111.5 acres (6.09%) were devoted to residential uses, 9,389.1 acres (.66%) were devoted to commercial uses, 770.3 acres (.05%) were devoted to hotels, motels and other transient uses, 15,128.9 acres (1.07%) were devoted to industrial uses, 8,967.6 acres (.63%) were devoted to institutional uses, 660,620.7 acres (46.73%) were devoted to parks and recreational open space, 5/ 69,091.3 acres (4.89%) were devoted to transportation, communications and utilities, 93,187.6 acres (6.59%) were devoted to agriculture, 18,268.9 acres (1.29%) were inland waters, 162,640.0 acres (11.51%) were coastal waters, and 289,453.2 acres (20.48%) were undeveloped or vacant. Of this undeveloped or vacant land, 149,823.5 acres (10.55%) were environmentally sensitive. The LUSC examined the pattern of growth in Dade County over the years and reported that, in the 1970's and 1980's, growth occurred primarily in the unincorporated area on the western fringe of the urbanized portion of the County. According the LUSC, this pattern of growth is anticipated to "persist throughout the remainder of this century and beyond." This projection was accompanied by the following explanation: Urban development opportunities are limited on the coastal ridge and on the barrier islands because there is little remaining developable land. It is on the western fringes that land is available. In Dade County these western growth areas extend from the Broward line to the farm lands and open areas of South Dade. With respect to what the future holds for the "urban interior," the following was stated: In the County's urban interior, its central city areas, growth will be modest or nonexis- tent. In most of these areas there is little remaining developable land and projected de- clines in average household size will offset whatever new development occurs. The Downtown area . . . is projected to show some modest gains in the 1990s and beyond, as downtown development efforts succeed in attracting more residents to the County's heart. The LUSC also contained an analysis performed by the Planning Department of the supply of vacant land available for development and the demand that would exist for such land on a countywide and sub-area basis during the planning period. 6/ In determining the supply of land available for residential development, the Planning Department considered the development potential of only vacant and agricultural land inside the UDB, as it existed prior to the adoption of the 1988 CDMP (pre-1988 UDB). Neither redevelopment opportunities, nor the residential capacity of land outside the pre-UDB, were taken into consideration. For each tract of vacant and agricultural land inside the pre- 1988 UDB, the Planning Department ascertained the number of units that would be able to be built, employing a methodology that was described as follows in the LUSC: This determination is based on the current [pre-1988] CDMP Land Use Plan density classi- fication, with numerous exceptions: In areas where no neighborhood or municipal plan has been adopted since the CDMP map classification was established for the parcel, existing zoning is used if greater than agricultural use (AU) or general use (GU). Where the existing zoning is used and land is zoned and platted for single family use, the development capacity of this land is determined by counting the vacant platted lots. In addi- tion, whenever the density of zoned land is further limited by covenants or approved site plans, those conditions are reflected. Where land is unplatted and zoned for estate den- sity residential, but is designated on the CDMP in a higher residential density category and is substantially surrounded by land that is zoned or designated for higher residential density, the land is assigned the density of the surrounding development. Similarly, small parcels zoned AU or GU are assigned a zoning classification comparable to surrounding de- velopment. AU and GU parcels 10 acres or larger are assigned the Plan density appli- cable to the area. In places where neighbor- hood or municipal plans have been adopted or completed since the CDMP classification was established for the parcel and the neighborhood or municipal plan shows a higher use or den- sity, the neighborhood or municipal plan density is used in estimating the development capacity. In instances where the existing zoning permits greater development than the neighborhood or municipal plan proposes, the zoned density is utilized. The gross supply for each area is discounted by a factor of 6 percent to reflect the finding that 6 percent of land in fully developed areas is typically vacant at any given time. The methodology employed by the Planning Department to determine the supply of land available in the County to accommodate growth is professionally accepted. To determine the demand that would exist for residential land during the planning period, the Planning Department first estimated the 1985 countywide population and then projected what the countywide population would be in the years 2000 and 2010. In so doing, it utilized a component methodology, which examined the three components of population change --births, deaths and migration. This methodology is professionally accepted. The Planning Department also made population estimates and projections for each of the minor statistical areas (MSAs) in the County. In making these estimates and projections, it used an extrapolation methodology that is professionally accepted. 7/ Pursuant to this methodology, a portion of the countywide projected population was allocated to each MSA based upon such factors as long- term subarea growth trends, estimates of current subarea population and existing subarea housing units, and subarea development capacity. The Planning Department estimated that the 1985 countywide population was 1,771,000 and it projected that the countywide population would be 2,102,000 by the year 2000 and 2,331,000 by the year 2010. Its population estimates and projections for MSA 6.1 and MSA 6.2, which collectively comprise an area of the County on the western urban fringe known as West Kendall, and MSA 7.2, which is part of the South Dade area of the County, were as follows: 1985- MSA 6.1: 76,961; MSA 6.2: 36,820; MSA 7.2: 32,791; year 2000- MSA 6.1: 135,932; MSA 6.2: 94,628; MSA 7.2: 44,127; year 2010- MSA 6.1: 162,611; MSA 6.2: 124,414; MSA 7.2: 52,518. It was noted in the LUSC that the West Kendall area was the "fastest growing part of Dade County in the 1970's and early 1980's" and that this area was "projected to account for about 38% of the County's growth" from 1985 to 1990. MSA 7.2 was described in the LUSC as among the "rapidly developing areas" of the County. The countywide and MSA population estimates and projections made by the Planning Department not only appeared in the LUSC, but they were adopted by the Board of County Commissioners and included in the future land use element of the 1988 CDMP. After making these population estimates and projections, the Planning Department sought to ascertain the future demand for new housing in the County. As it explained in the LUSC: This projection is a function of the projected population increase. The methodology assumes that the mix of housing units in that area will remain as it is currently and that house- hold sizes will decline slowly. Residential unit requirements are derived from the pro- jected increase in households with a 5 percent allowance for vacancy of dwelling units. The Planning Department projected that countywide demand would be 9,150 total units annually until 1990, 10,731 total units annually between 1990 and 1995, 10,983 total units annually between 1995 and the year 2000, 11,449 total units annually between the year 2000 and the year 2005 and 11,734 total units annually between the year 2005 and the year 2010. For MSA 6.2 and 7.2, the Planning Department's demand projections were as follows: MSA 6.2- 1,498 total units annually until 1990, 1,739 total units annually between 1990 and 1995, 1,630 total units annually between 1995 and the year 2000, 1,453 total units annually between the year 2000 and the year 2005, and 1,288 total units annually between the year 2005 and the year 2010; MSA 7.2- 269 total units annually until 1990, 309 total units annually between 1990 and 1995, 332 total units annually between 1995 and the year 2000, 360 total units annually between the year 2000 and the year 2005, and 373 total units annually between the year 2005 and the year 2010. Having projected future housing demand, the Planning Department then compared the projected demand to the supply of available residential land and concluded that, assuming no additional residential capacity was added, there was a sufficient aggregate supply of single-family and multifamily housing units inside the pre-1988 UDB to accommodate projected growth until the year 2008. 8/ With respect to MSA 6.2 and MSA 7.2, the Planning Department concluded that the former had sufficient residential capacity to last until the year 2001 and that the latter's supply of residential land would be depleted a year earlier. Notwithstanding its conclusion that there was a sufficient supply of residential land inside the pre-1988 UDB to last until the year 2008, the Planning Department recommended that the 1988 version of the CDMP provide even more residential capacity within the UDB. 9/ It explained its position on the matter as follows in the LUSC: [The urban development boundary] contains sufficient capacities to sustain single family development until 2004 and multi-family development until 2014. However, it is recognized that decisions regarding the development and purchase of residences involve complexities that trans- cend the single consideration of the presence of vacant zoned land. Market conditions, neighborhood pressure, transportation or service deficiencies, and investment deci- sions can impede development of vacant parcels. 10/ The proposed land use plan for 2000 and 2010 includes substantially more additional land than indicated above to insure that no short- ages will occur. . . . [T]he proposed LUP map for 2000 and 2010 in- cludes capacities for an additional 23,590 single family-type dwelling units in the area located between the 1990 urban development boundary of the comprehensive plan LUP map which is currently in effect, and the pro- posed year 2000 UDB of the proposed plan map. The Planning Department also inventoried the supply of land available for industrial and commercial development in the County. As reported in the LUSC, it determined that, as of 1985, the County had almost a 50-year supply of industrial land and a 16.6-year supply of commercial land. It further determined, and reported in the LUSC, that, as of 1985, MSA 6.2 had a 5.1-year supply of commercial land and a 92.5-year supply of industrial land and that MSA 7.2 had a 10.1-year supply of commercial land and a 48.7-year supply of industrial land. The 1988 CDMP: Compliance Review and Stipulated Settlement Agreement The 1988 CDMP was submitted to the Department of Community Affairs for its review. On January 30, 1989, the Department issued its statement of intent to find the 1988 CDMP not "in compliance." The Department's objection to the plan concerned the low level of service standards the plan established for certain roadways. The Department subsequently, by petition, referred the matter to the Division of Administrative Hearings. Thereafter, the Department and County entered into a stipulated settlement agreement. Pursuant to the agreement, the County was to make certain changes to the 1988 CDMP to satisfy the concerns expressed by the Department in its statement of intent. The changes involved the 1988 CDMP's capital improvements element and its traffic circulation element. The County was to amend the capital improvements element to incorporate the primary components of the County's existing concurrency management system. The traffic circulation element was to be amended to establish three geographical zones or "tiers." One of the zones, the area inside the UDB east of the Palmetto Expressway (N.W. 77th Avenue), was to be denominated the "Urban Infill Area." 11/ The level of service standards for roadways in the Urban Infill Area were to be lower than those for roadways in the other two zones. Although these level of service standards for roadways in the Urban Infill Area were extremely low, and may have been unacceptable under other circumstances, it was felt that they were necessary, at least on a temporary basis, to promote infill development and encourage the use of mass transit, including the County's rapid rail system, which is underutilized. The agreement provided that if the County made these changes, the Department would find the 1988 CDMP, as amended in accordance with the agreement, "in compliance" and would recommend to the Administration Commission that the compliance proceeding that had been initiated by the Department be dismissed without the imposition of any sanctions. The County made the changes described the settlement agreement by adopting Ordinance No. 90-37. On June 14, 1990, the Department published its notice of intent to find the 1988 CDMP, as amended by Ordinance No. 90-37, "in compliance." This finding was made notwithstanding that the LUSC indicated that there was enough land inside the pre-1988 UDB to accommodate residential development well beyond the year 2000 and there had been, as a result of the Amendatory Ordinance's westward extension of the UDB and its redesignation of certain lands inside the realigned UDB, an addition to the existing supply of land available for residential development. The 1989-1990 CDMP Amendment Application Cycle A total of 71 applications to amend the CDMP were filed during the 1989-1990 CDMP amendment application cycle (Amendment Cycle). Twenty-seven of these applications were filed by private citizens as authorized by County ordinance. The remaining applications were filed by the Planning Department. Of the 27 privately filed applications, 25 requested changes to the FLUM and two requested changes to the text of the CDMP's land use element. The Planning Director filed a like number of applications to amend the FLUM. Application 39 Among the privately filed applications was Application 39, which was submitted by John H. Wellenhofer. The subject of Application 39 was a 25-acre parcel of land owned by Wellenhofer (Wellenhofer's property). Wellenhofer's property is in Study Area G and MSA 6.2. It is bounded on the north by Southwest 116th Street, on the south by Southwest 118th Street, on the east by Southwest 142nd Avenue and on the west by Southwest 144th Avenue. The property was located near, but inside, the UDB as established by the 1988 CDMP (1988 UDB). Through Application 39, Wellenhofer requested that the land use designation of his property on the FLUM be changed from "industrial and office" to "low density residential" (up to six dwelling units per gross acre). Application 39 and the Tamiami Airport The southern boundary of Wellenhofer's property lies two blocks, or approximately 660 feet, to the north of Tamiami Airport. The Tamiami Airport, which was opened in 1967, serves as a general aviation reliever for Miami International Airport. Tamiami is 1,380 acres in size and is the busiest general aviation airport in the County. The aircraft that use Tamiami are light aircraft, principally single and twin propeller driven airplanes. Tamiami does not, and in any event is not equipped to, handle commercial aircraft. Tamiami has three runways: (1) the north runway (9L-27R), an east- west runway; (2) the south runway (9R-27L), a parallel east-west runway; and the diagonal runway (13-31), a northwest-southeast runway. The north runway, which is the runway closest to Wellenhofer's property, lacks facilities to permit navigation by instrument for flights at night or in inclement weather. The flight pattern for the north runway is an oval shape. Wellenhofer's property is not under any portion of this flight pattern, nor is it under the flight patterns for the other two runways. It lies in the center of the oval created by the flight pattern for the north runway. It should be noted, however, that there are instances where aircraft, for one reason or another, deviate from these flight patterns. Residential communities in the vicinity of Tamiami already exist. A recent proposal to lengthen the south runway was opposed by a large number of the residents of these communities. In the face of such opposition, no action was taken on the proposal. Because of the noise generated by airport operations, residential uses in the area surrounding an airport may be incompatible with those operations. 12/ The CDMP recognizes that there is the potential for such land use incompatibility. It mandates that the federal government's 65/75 LDN contour standard contained in 14 C.F.R., Part 150, be used to determine if a particular residential use in the vicinity of an airport would be incompatible with the operations at that airport. The noise contour at 65 LDN for the north runway at Tamiami does not leave the airport property and barely leaves the runway itself. That is not to say, however, that one standing on Wellenhofer's property cannot hear the sound of aircraft using the airport. Wellenhofer's property is separated from Tamiami by land that is designated on the FLUM for "industrial and office" use. An identical 660 foot, "industrial and office" buffer separates the airport from the residential lands that lie to the south of the western end of the airport. The area immediately to the north, to the south and to the east of Tamiami is denominated an "employment center" in the CDMP. Accordingly, a substantial amount of land in this area, particularly to the east of the airport, has been designated on the FLUM for "industrial and office" use. Land immediately to the west of the site of current airport operations at Tamiami is designated on the FLUM for "transportation-terminals" use. Immediately west of this land is a large expanse of land, outside the UDB, which is designated on the FLUM for "agriculture" use. The CDMP's port and aviation facilities element indicates that "future aviation facility improvements are proposed to be made on or adjacent to the sites of existing airports" in the County and that the "westward 1,900 foot extension of the southern runway at Tamiami Airport" is one such proposed improvement that will be the subject of future consideration. Application 40 Another application filed by a private applicant during the Amendment Cycle was Application 40. It was submitted by the Suchmans. The subject of Application 40 was 320 acres of land (Application 40 property) located in Study Area G and MSA 6.2 and bounded on the north by Southwest 136th Street, on the south by Southwest 152nd Street, on the east by Southwest 157th Avenue and the Black Creek Canal, and on the west by Southwest 162nd Avenue. This land was located outside, but contiguous to on the north and east, the 1988 UDB. Immediately to the north of the Application 40 property is land that is shown on the FLUM as part of the western end of the Tamiami Airport. The CSX railroad tracks run parallel to the southern perimeter of the airport and they bisect the Application 40 property. The land immediately to the east of the Application 40 property which is north of the railroad tracks is designated on the FLUM for "industrial and office" use. The land immediately to the east of the Application 40 property which is south of the railroad tracks is designated on the FLUM for "low density residential communities" use. The land immediately to the south and the west of the Application 40 property is designated on the FLUM for "agriculture" use. At the time of the filing of Application 40, the area immediately surrounding the Application 40 property was undeveloped and in agricultural use. By the time of the formal hearing in the instant case, however, residential development was underway on a portion of the land immediately to the east of the Application 40 property which is south of the railroad tracks. Further to the east is a large scale residential development known as "Country Walk." The Suchmans own 190 acres of the Application 40 property. All but 30 acres of the land they own is on the western side of the property. The Suchmans first acquired an interest in the property in 1973 or 1974. They are in the real estate business and they purchased the property for investment purposes. While the Suchmans are not involved in the agricultural business, over the years they have leased their land to tenants who have used it for agricultural purposes. Since about 1987, it has become increasingly difficult, albeit not impossible, for the Suchmans to find such tenants. At least up until the time of the formal hearing in the instant case, their property was being actively farmed. The Suchmans, through Application 40, originally sought to have the land use designation of the Application 40 property north of the railroad tracks changed from "agriculture" to "industrial and office" and to have the land use designation of the remaining 280 acres of the property changed from "agriculture" to "low density residential." 13/ Subsequently, at the final adoption hearing, they amended their application. The Suchmans' amended application sought redesignation only of that land within the boundaries of the Application 40 property that the Suchmans owned: the western 20 acres of the Application 40 property north of the railroad tracks (from "agriculture" to "industrial and office" use); and 170 acres of the remaining land (from "agriculture" to "low density residential"). Under the amended application, the 130 acres of the Application 40 property not owned by the Suchmans was to remain designated for "agriculture" use. 14/ In addition to seeking the redesignation of their land, the Suchmans' application, in both its original and amended form, requested that the 1988 UDB be extended to encompass all 320 acres of the Application 40 property. Application 47 Application 47 was also filed by a private applicant. It was submitted by Alajuela N.V. The subject of Application 47 was an 160-acre tract of land (Application 47 property) located in Study Area I and MSA 7.2 and bounded by Southwest 264th Street on the north, Southwest 272nd Street on the south, Southwest 157th Avenue on the east and Southwest 162nd Avenue on the west. This land was located outside, but contiguous to on the south and east, the 1988 UDB. Immediately to the south and to the east of the Application 47 property is land designated on the FLUM for "estate density residential communities" use (up to 2.5 dwelling units per gross acre). The land immediately to the north and to the west of the Application 47 property is designated "agriculture" on the FLUM. Through its application, Alajuela N.V. requested that the land use designation on the FLUM of the Application 47 property be changed from "agriculture" to "estate density residential" 15/ and that the 1988 UDB be extended to encompass this property. Alajuela N.V. owns the entire western half of the Application 47 property. The eastern 80 acres is divided into a number of parcels, the majority of which are under five acres, with different owners. The eastern half of the Application 47 property contains 15 acres of Dade County pine forest. The Application 47 property lies approximately three-quarters of a mile both to the west and north of the U.S. 1 corridor in South Dade, which, according to the LUSC, "[s]ince 1970 . . . [has] experienced particularly heavy development and intensification of land use." This puts it on the southern fringe of an area of South Dade known as the Redlands. While the boundaries of the Redlands are not precise, it is generally understood to range from Southwest 184th Street on the north to the urbanizing areas of the City of Homestead on the south and from U.S. 1 on the east to a meandering line on the west where predominantly mixed agricultural and residential uses end and large-scale agricultural operations generally uninterrupted by residential development begin. While there is significant agricultural activity in the Redlands, primarily involving grove and nursery operations, 16/ an increasing residential trend has been established, particularly on the urbanizing fringes of the area and on parcels less than five acres in size that, because of the grandfathering provisions of the CDMP, are not subject to the restriction imposed by the CDMP that lands designated for "agriculture" use not be used for residential development in excess of one unit per five acres. Residential developments lying south of the Application 47 property constitute the urbanizing area of the City of Homestead. Homestead is a CDMP- designated activity center and, according to the LUSC, it was the fastest growing municipality in Dade County during the period from 1970 to 1987. Homestead's northern jurisdictional limits lie approximately two miles south of the Application 47 property. A substantial portion of the land between the Application 47 property and Homestead is presently undeveloped. The Application 47 property is approximately four and one half miles, by road, from the Homestead Air Force Base, a CDMP-designated employment center. Also in proximity to the Application 47 property are the Homestead/Florida City Enterprise Zone; the Villages of Homestead, which is a 7,000 acre development of regional impact; and commercial and industrial development along the U.S. 1 corridor in South Dade. 17/ The land immediately surrounding the Application 47 property is currently being used primarily for agricultural purposes, however, there is also residential development, as well as vacant land in the area. The western half of the Application 47 property is presently in active agricultural use. The eastern half of the Application 47 property is also the site of agricultural activity. Unlike the western half of the property, however, the eastern half is not used exclusively for agricultural purposes. Residences are located in this half of the property. Other Applications of Note Application 58, which was filed by the Planning Department, sought an amendment to the text of the land use element which would allow new agricultural uses in utility easements and right-of-way areas inside the UDB. Application 62 was another application filed by the Planning Department. Through Application 62, the Planning Department sought to have the Board of County Commissioners update and revise the countywide and MSA population estimates and the MSA population projections for the years 2000 and 2010 that had been adopted as part of the CDMP's land use element in 1988. In Application 62, the Planning Department recommended that the 1985 countywide and MSA population estimates found in the CDMP be replaced by 1989 estimates, including the following: countywide- 1,894,999; MSA 6.1- 92,715; MSA 6.2- 50,841; and MSA 7.2- 33,511. With respect to the population projections adopted in 1988, the Planning Department requested that they be modified to reflect a different distribution of the projected countywide population. The proposed modifications, as they pertained to MSA 6.1, MSA 6.2 and MSA 7.2, were as follows: year 2000- MSA 6.1: 137,612; MSA 6.2: 89,404; MSA 7.2: 42,012; year 2010- MSA 6.1: 175,504; MSA 6.2: 124,380; MSA 7.2: 53,823. In making these modified projections, the Planning Department utilized the same professionally accepted methodology it had used to make the projections that had been adopted in 1988. The Planning Department did not propose in Application 62 that any material change be made to the year 2000 or the year 2010 countywide population projections. A third application filed by the Planning Department was Application This application sought to have the Board of County Commissioners amend the text of the land use element to provide for the establishment of Traditional Neighborhood Developments (TNDs) by the adoption of land use regulations. Under the proposed amendment, TNDs, designed to provide a mix of employment opportunities, to offer a full range of housing types, and to discourage internal automobile use, among other objectives, would be permitted in areas designated for residential use on the FLUM. Planning Department's Preliminary Recommendations Report On August 25, 1989, the Planning Department prepared, for the benefit of the Board of County Commissioners, and published a two-volume report (PR Report) containing its initial recommendations on the 71 applications filed during the Amendment Cycle, as well as the background information and analyses upon which those recommendations were based. In its PR Report, the Planning Department analyzed, among other things, the amount of land that was needed and available to accommodate anticipated growth. In conducting its analysis, the Planning Department employed essentially the same, professionally accepted methodology, previously described in this Recommended Order, that it had used in 1988. The population estimates and projections upon which it relied were the updated and revised estimates and projections that were the subject of Application 62. The Planning Department estimated that in 1989 the County's residential capacity was 247,438 total dwelling units (134,333 single-family units and 113,105 multifamily units). Countywide demand was projected to be 9,157 total dwelling units a year from 1989 to 1995, 10,920 total dwelling units a year from 1995 to the year 2000, 11,440 total dwelling units a year from the year 2000 to the year 2005, and 11,601 total dwelling units a year from the year 2005 to the year 2010. Under this scenario, in the year 2010, there would remain a residential capacity of 22,689 total dwelling units. According to the Planning Department's analysis, this remaining countywide residential capacity would be depleted in the year 2012 (depletion year). The Planning Department forecast an earlier depletion year, 2009, for single-family units. In addition to analyzing countywide residential capacity, the Planning Department conducted an analysis of the amount of land that was available in the County for commercial and industrial development. The Planning Department's analysis revealed that the County had sufficient commercial capacity to last until the year 2008 and that it had sufficient industrial capacity to last until the year 2041. The Planning Department analyzed residential, commercial and industrial capacity, not only on a countywide basis, but on a subarea basis as well. This subarea analysis yielded the following forecast as to Study Areas G and I and MSAs 6.2 and 7.2: Study Area G- depletion year for residential land: year 2005 (all dwelling units), year 2006 (single-family units), and year 2005 (multifamily units); depletion year for commercial land: year 2003; and depletion year for industrial land: year 2076. Study Area I- depletion year for residential land: year 2019 (all dwelling units), year 2016 (single-family units), and year 2030 (multifamily units); depletion year for commercial land: year 2015; and depletion year for industrial land: year 2091. MSA 6.2- depletion year for residential land: year 2006 (all dwelling units), year 2002 (single-family units), and year 2025 (multifamily units); 18/ depletion year for commercial land: 1995; and depletion year for industrial land: year 2075. MSA 7.2- depletion year for commercial land: year 2009; and depletion year for industrial land: year 2078. In its PR Report, the Planning Department also surveyed the environmental, physical and archaeological/historic conditions in each study area of the County, with particular emphasis on the lands that were the subject of the various applications to amend the FLUM (hereinafter referred to collectively as the "application properties"). The PR Report noted that Study Area G, "a large area (approx. 81 sq. mi.) located along the westerly fringe of southwestern Dade County," was characterized by the following environmental, physical and archaeological/historical conditions: Study Area G encompasses the western portions of the Snapper Creek (C-2), C-100 and Black Creek (C-1) canal drainage basins. Natural ground elevations range from five to six feet msl in the northwestern portion of the area to ten to fifteen feet in the part of the Study area generally south of SW 120 Street. Similarly, there is a gradient in the soil conditions from the NW to the SE. In the NW quarter of the area, generally west of 144 Avenue and north of Kendall Drive, the limerock substrate is covered with seasonally flooded Everglades peats and mucks. The southern and eastern three quarters of the study area is generally characterized by well drained rocklands interspersed with poorly drained marls in the former transverse glades. Where organic soils exist, they must be re- moved prior to filling to meet County flood criteria. Therefore as much as four feet of fill may be required to meet the County cri- teria in the northwestern part of this area. The average groundwater table elevations range from above five feet in the northwest to four feet in the southeast. Therefore, the area of Bird Drive and much of the area north of Kendall Drive west of SW 137 Avenue has tradi- tionally experienced considerable flooding and drainage problems. * * * Approximately 70 percent (5,522 acres) of the Bird Drive Basin is vegetated with native wet- land wet prairie, shrub and tree island habi- tats. However, 3,083 acres are heavily or moderately invaded by the exotic tree, Malaleuca. In 1987 the County initiated a Special Area Management Planning (SAMP) pro- cess for this area to develop a wetlands miti- gation plan and funding proposals that will facilitate development in some portions of the Bird Drive Everglades Basin. The poten- tial presence of a new 140-million gallon per day (mgd) Biscayne Aquifer water wellfield in the western part of the Bird Drive Basin has made the feasibility of on-site wetland miti- gation highly questionable for the Basin area. Therefore, the County is exploring several off-site mitigation options as part of the SAMP. Proposals to develop in this Basin are presently constrained by language in the adopted components of the CDMP which tie de- velopment orders to the conclusion of the SAMP, unless the applicants can demonstrate vested rights. * * * In the portion of the study area south of Kendall Drive, the most significant environ- mental resources are stands of native pinelands. There are several environmentally sensitive pinelands in Study Area G, however, none of the properties included in applications 34-4 contain significant natural, historical o archaeological resources. . . . Table 1G of the PR Report contained the following information regarding the specific environmental, physical and archaeological/historic characteristics of Wellenhofer's property and the Application 40 property: Wellenhofer's Property: Soils- rockdale/rockland; drainage characteristics of soils- good; elevation: eight feet; drainage basin- C-100; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The Application 40 Property: Soils- rockdale, marl; depth of organic soils (marl)- one foot; drainage characteristics: good; elevation: eight feet; drainage basin: Black Creek Canal; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The environmental, physical and archaeological/historic characteristics of Study Area I, "a large (approx. 164 sq. mi.) region of south Dade County," were described as follows in the PR Report: Study Area I includes portions of CDMP Envi- ronmental Protection Subarea A, Biscayne National Park; Subarea D, the C-111 Wetlands; Subarea E; the Southeast wetlands; and Subarea F, Coastal Wetlands and Hammocks. These areas have been so designated because they contain important, relatively unstressed high-quality wetlands, which provide important water quality and wildlife values. Study Area I also includes a large part of CDMP Open Land Subarea 5. In most of the area east of Krome Avenue and west of U.S. 1, natural ground elevations range from ten to fifteen feet msl on the ridge and from five to ten feet in the former sloughs. The area east of the Turnpike and south of Florida City is less than five feet mean sea level. The highest average groundwater levels are at or above the ground surface throughout most of the area east of the Turnpike Extension and south of Florida City. Saltwater intrusion in the Aquifer extends two to five miles inland in this low lying area. In the area west of the Turnpike and east of Levees-31N and 31W, the soils are rocklands except in the former sloughs where marls pre- dominate. East of the Turnpike and south of Florida City, marls are the dominant soil type except along the coast where peats occur. The Black Creek (C-1), C-102, Mowry (C-103), North Canal, Florida City and C-111 canal sys- tems drain much of the northern and eastern portion of this study area. The area east of the Turnpike has recurring flooding and drainage problems due to its low elevation and flat gradient. The western portions of the C-102, C-103 and much of the C-111 drainage basins have limited flood protection. There is no flood protection in the area south of the Florida City Canal east of US 1 or in most of the area west of US 1 and south of Ingraham Highway. . . . * * * This study area also includes most of the environmentally sensitive natural forest com- munities that remain in Dade County. Appli- cation 47 contains a 15-acre pineland which presently receives maximum protection because it is outside the UDB and zoned AU. At the most, 20 percent of the pineland could be re- moved under the provisions of Chapter 24-60 of the Code of Metropolitan Dade County. . . . Table 1I of the PR Report contained the following additional information regarding the specific environmental, physical and archaeological/historic characteristics of the Application 47 property: Soils- rockland; drainage characteristics of soils- good; elevation: eleven to twelve feet; drainage basin- C-103; wetlands permits required- none; native wetland communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The PR Report also provided general information regarding existing land uses within each study area and more detailed information regarding existing land uses within and adjacent to each application property. The following was said with respect to existing land use patterns within Study Areas G and I: Study Area G- About half of this study area is suburban in character while the other half is primarily agriculture or undeveloped. The study area also contains a special agricul- tural area known as "horse country" for eques- trian related activities. The urbanizing portion is primarily residential with support- ing commercial and industrial activities. Residential areas include a range of housing from detached, single dwelling units to attached, multiple dwelling units at medium density. The area also contains two major recreation facilities-- Metrozoo and a county park. The major concentration of commercial activities has occurred along major thoroughfares such as North Kendall Drive. Some industries and offices are clustered in the vicinity of Tamiami Airport, a major general aviation facility located in the study area. Study Area I- This study area includes var- ious types of agricultural activities and rural development as well as suburban develop- ment largely oriented to US 1. The suburban development is primarily residential with supporting commercial uses. Although most of the housing is detached, single dwelling units, residential areas also include attached, multiple dwelling units at medium density. There are also several districts for industries and offices, some of which are oriented to expressway and railway systems. More than half of this study area is used for agriculture or is undeveloped. Much of the area is floodplain and the eastern fringe is subject to coastal flooding. Some of these areas are used for parks, preserves and water management areas. The area also contains several wellfields for public water supply, which are located inland from the coast and a major military installation-- Homestead Air Force Base. The PR Report stated the following with respect to the existing land uses within and adjacent to Wellenhofer's property, the Application 40 property and the Application 47 property: Wellenhofer's Property: The area, which con- tains 25 acres, is being used for agricultural purposes. Land located in the vicinity to the south and west is also being used for agriculture while zoned IU-C. The land on the north side is being developed for residential purposes. Boys Town home is located immediately to the west. The site is located one quarter mile north of Tamiami Airport. . . . The Application 40 Property: The area, which contains 320 acres, is being used for agricul- tural purposes. . . . Land in the vicinity on all four sides is also being used for agriculture. Tamiami Airport is located to the northeast of this site. The Application 47 Property: Most of the land in this area is being used for agriculture. The remainder is being used for rural residences or is vacant. The vacant parcels are zoned for agriculture (AU). Land in the vicinity on all sides has the same character. It is primarily agriculture with scattered rural residences or vacant parcels. These vacant parcels are also zoned for agri- culture (AU). The PR Report examined not only existing land use patterns, but future development patterns as well. The future development pattern set forth in the 1988 CDMP for Study Areas G and I were described in the PR Report as follows: Study Area G- The future land use pattern adopted for this area provides primarily for continued residential uses at low, and low-medium densities, with industrial and office development bordering the Tamiami airport. Nodes of commercial uses are pro- vided for at certain major intersections cen- trally located to serve the resident popula- tion. The western portions of the Study Area are slated for continued agricultural produc- tion, while the extreme northwest corner of the Area is designated as Open Land to pro- tect the West Wellfield. Study Area I- The future development pattern established for this area provides for mixed residential infilling (primarily estate, low density and low-medium-density, with some medium-high density located along SW 200 Street east of US 1). Commercial infilling is provided for along both sides of US 1 and along SW 312 Street. Major industrial areas are established south of SW 312 Street and west of 142 Avenue, west of SW 177 Avenue in the Homestead-Florida City area, north and south of 248 Street west of US 1 and south of SW 184 Street between US 1 and the HEFT [Homestead Extension to the Florida Turnpike]. The areas outside of, but contiguous to, the year 2000 Urban Development Boundary (UDB) are, for the most part, designated Agriculture, with land to the south and east designated as Open Land graduating to Environmental Protec- tion designations further south. . . . The PR Report also contained an evaluation of the current and future condition of public services in each study area, including an analysis, where possible, of each application's impact on these services. The public services addressed were roadways, transit, schools, parks, water, sewer, solid waste, and fire and rescue. The projected impacts of Applications 39, 40 (in its original form) and 47 on roadways were described as follows in the PR Report: Application 39: [Application 39 will result] in reduced peak hour trips affecting the year 2010 network in this [study] area. None of the roads within the area of this application were projected to operate worse than LOS D in the year 2010. Application 40: Due to its proximity to SW 177 Avenue, the combined 1422 peak hour trips generated by this amendment primarily impact SW 177 Avenue, which is already projected to operate at LOS F. The long term adopted standard for this road is LOS C. Even without this application the road does not meet this adopted standard. Application 47: Application 47 . . . if de- veloped would generate approximately 171 residential based peak hour trips in 2010. . . . Generally, this application would have negligible impacts on the LOS traffic conditions in 2010. The projected impacts of Applications 39, 40 (in its original form) and 47 on transit were described as follows in the PR Report: Applications 39 and 40: In general, no signi- ficant amount of transit trips would be generated by the amendment applications in this Study Area [G], even though a number of the applications (i.e. . . . 39, 40, ) are located in areas projected to have service improvements by 2010. Therefore, no additional service improvements are warranted beyond those that will be required to serve the area in general for 2010. Application 47: [N]o significant amount of transit trips would be generated by Applica- tion . . . 47. The projected impacts of Applications 39, 40 (in its original form) and 47 on schools were described as follows in the PR Report: Applications 39 and 40: It is estimated that the applications [in Study Area G] would in- crease the student population by [a total of] 2,784 students. . . . Application 40 would generate 874 additional students; . . . The other applications for residential use [including Application 39] would generate less than a hundred new students each. Application 47: If Application 47 were ap- proved, it would generate an additional 239 students at all grade levels. The greatest impact would be felt at the elementary school level, where an additional 129 students would have to be accommodated. Redland Elementary, which is the elementary school that would pro- bably serve the subject Application Area, is operating at a utilization rate of 163 percent. Additional classrooms are planned for construc- tion at Redland Elementary over the next few years, raising this school's number of Exist- ing Satisfactory Student Stations (ESSS) from 523 to 901. In addition, a relief school for Redland Elementary is to be built in this area by mid-1993, providing an additional 885 SSS. The projected impacts of Applications 39, 40 (in its original form) and 47 on parks were described as follows in the PR Report: Applications 39 and 40: Study Area G cur- rently meets the park level of service stan- dard (LOS) and is expected to meet the LOS in the year 2000. . . Despite the rapid popula- tion growth in the area, the LOS has remained above standard in part because of recreational facilities and open space that are provided in the planned residential developments which characterize the Study Area. Approval of those applications requesting new residential uses in Study Area G could result in a lowering of the LOS for parks if new park land is not provided. Application 47: By the year 2000, MSA 7.2 is expected to fall below standard if no addi- tional parks are provided. * * * Application 47 lies within MSA 7.2 which is currently above the LOS standard but is expected to fall below standard if no addi- tional park land is provided. The PR Report indicated that the fire and rescue response times to Wellenhofer's property, the Application 40 property and the Application 47 property were four minutes, 13 minutes, and three to four minutes, respectively, and that roadway accessibility to all three sites was good. With respect to the Application 40 property, the PR Report further noted that it "would be serviced by the planned Richmond Station after its completion in 1992-93," which would reduce the response time to the site to no more than six minutes. Water and sewer service in Study Areas G and I was described as follows in the PR Report: Study Area G: Water and sewer service is provided to Study Area G by WASAD [Metro- politan Dade County Water and Sewer Authority Department]. The area is characterized by large residential developments which have been built over the past decade. Water and sewer service was constructed by area devel- opers in many cases, and most of the developed area is served. . . . . [T]he 'Horse Country' area west of the Turnpike is not connected to either water or sewer. Potable Water Supply Water is supplied to Study Area G by WASAD's Alexander Orr Water Treatment Facility. This facility's current design rating is 178 MGD, and the historical maximum day water demand has been 146 MGD. . . . The Orr facility currently produces water which meets all federal, state and county drinking water standards. WASAD has recently made improve- ments to the Alexander Orr facility and devel- oped a long term expansion program. By 1990, it is expected that the plant will attain a rated capacity of 220 MGD. A major improvement to the distribution system in this Study Area is the completion of the 36/48 inch main which extends along SW 137 Avenue from SW 122 Street to SW 184 Street. In conjunction with other improvements, the system in this area is being connected to the South Miami Heights and the Orr Treatment Plants, providing adequate capacity for the southern portion of Study Area G. Improvements that are scheduled for 1989-90 include the extension of the 36 inch water main along Kendall Drive to SW 157 Avenue, and continued construction of the 96 inch raw water main that will deliver water from the new West Wellfield to the Alexander Orr Treat- ment Plant. Sewer Study Area G is served by the South District Wastewater Treatment and Disposal Facility. This facility has a current design capacity of 75 MGD. Based on a 12-month running average daily flow for this plant was 75 MGD. . . . Expansions to the South District facility are programmed for completion in 1994 to increase the design capacity to 112.5 MGD. Sewage effluent produced by this plant also conforms to federal, state and county effluent standards and is disposed of via deep well injection. Study Area I: Most of Study Area I is in agri- cultural use and relies primarily on private wells and septic tanks. WASAD serves the devel- oped areas in unincorporated Dade County. Florida City provides water service within the city limits and sewer service is provided by WASAD. A portion of the study area is also served by the City of Homestead. Homestead's franchised service area extends a short dis- tance outside the City limits: it is bounded irregularly on the East, on the West by SW 192 Avenue, by the City limits on the South, and on the North by SW 296 Street. Water distri- bution and sewage collection systems are main- tained by the Air Force to serve Homestead Air Force Base. Potable Water Supply The northeast corner of the Study Area is con- nected to WASAD's regional water supply system and is served by the Alexander Orr Treatment Plant. . . . [T]he served area south of SW 248 Street is not yet connected to the regional system. This area is served by the former Rex Utility system, which is now owned by WASAD, and by the City of Homestead. The Rex system has a rated capacity of 16.2 mgd and a maximum water demand of 8.81 mgd. The Homestead plant has a rated capacity of 9.9 mgd and a maximum demand of 7.7 mgd. . . . Water produced by these treatment plants meets federal, state, and county drinking water standards. A major improvement scheduled for this area is a 48 inch main which will run south along SW 127 Avenue from 248 Street to SW 280 Street to connect the existing systems to the Alexander Orr Treatment Plant. Upon completion of this main in 1990 or 1991, the . . . treatment plants of the Rex system will be phased out. . . . Sewer Florida City and the unincorporated portion of Study Area I are served by the South District Wastewater Treatment and Disposal Facility, which has a current design capacity of 75 mgd and an average daily flow of 84.2% of rated capacity. Expansions to the South District facility, programmed for completion in 1994, will increase the design capacity to 112.5 mgd. Sewage effluent treated by this plant conforms to the federal, state and county effluent stan- dards and is disposed of via deep-well injection. . . . The only remaining sewage treatment plant in Dade County is operated by the City of Homestead. The plant is designed to treat 2.25 mgd and its capacity is in the process of being evaluated by the Florida Department of Environmental Regula- tion. The Homestead system currently operates under an agreement to divert a portion of its wastewater to WASAD for treatment and disposal. . . . The following was indicated in the PR Report concerning the water and sewer service available to Wellenhofer's property, the Application 40 property and the Application 47 Property: Wellenhofer's property: distance to nearest water main- 1320 feet; diameter of this main- 12 inches; location of this main- SW 112th Street and SW 142nd Avenue; distance to nearest sewer main- 4000 feet; location of this main- SW 112th Street and SW 137th Avenue. The Application 40 Property: distance to nearest water main- 0 feet; diameter of this main- 24 inches; location of this main; SW 152nd Street and SW 157th Avenue; distance to nearest sewer main- one mile; location of this main- SW 136th Street and SW 147th Avenue. The Application 47 Property: distance to near- est water main- 2640 feet; diameter of this main- 12 inches; location of this main- SW 157th Avenue and 280th Street; distance to nearest sewer main- 3960 feet; location of this main- SW 157th Avenue and SW 284th Street. 19/ The significance of the availability of water and sewer service to a particular application property was described as follows in the PR Report: Although specific requirements under Chapter 24 of the Code of Metropolitan Dade County vary with land use, most new development in Dade County is required to connect to the public water or sewer system, or to both. The timing of new development is heavily depen- dent on the availability of these services. Where water and sewer service does not exist and is not planned, the services may be pro- vided by the developer. When construction is completed, the facilities are donated to the utility. The proximity of an application area to exist- ing or programmed water and sewer lines is an important indicator of whether or not the area is likely to develop within the 2000 time frame of the Urban Development boundary. . . . The following observations were made in the PR report regarding solid waste services in the County: The Metro-Dade Department of Solid Waste Management provides both collection and dis- posal services for Dade County. The Department is responsible for the final dis- posal of solid waste generated anywhere in the County and for residential collection in the urbanized portions of unincorporated Dade County. Residents in sparsely developed areas of the County are responsible for delivering their waste to a proper disposal site. In general, industrial and commercial businesses often use private haulers who can provide customized service that is not available from the County. . . . Countywide, the solid waste disposal system has sufficient capacity to maintain the adopted level of service of 7 pounds per person per day through 1995. The Department's Objections, Recommendations and Comments Report (ORC) The Board of County Commissioners took preliminary action on the applications filed during the Amendment Cycle and transmitted to the Department its proposed amendment to the CDMP. Accompanying the proposed amendment was the PR Report. The Department issued its Objections, Recommendations and Comments Report (ORC) on February 2, 1990. A copy of the ORC, accompanied by a cover letter, was sent to the Mayor of Metropolitan Dade County, the Honorable Stephen P. Clark, that same day. The cover letter advised the Mayor that if he "would like the Department to participate in the public hearing for amendment adoption, such request should be received by the Department, certified mail, at least 14 days prior to the scheduled hearing date." The following were the statements made in the ORC that referenced Applications 39, 40 and 47: FUTURE LAND USE ELEMENT OBJECTIONS * * * Analysis 1. 9J-5.006(2)(b) The analysis of the character of the existing vacant or undeveloped land in order to deter- mine its suitability for use does not support the plan amendments that propose to extend the Urban Development Boundary (UDB) by 845 acres. The analysis demonstrates that the UDB as cur- rently delineated ensures an adequate supply of each land use will be available for the planning timeframe. In addition, the existing analysis identifies this region as environmen- tally sensitive and not suitable for urban uses. Recommendation Revise the plan amendments to retain the UDB as currently delineated in the adopted Metro-Dade Comprehensive Development Master Plan (CDMP) or include analysis that would justify extension of the UDB for urban uses while not causing adverse impacts to the environmentally sensitive lands in the East Everglades Area. 2. 9J-5.006(2)(c)2. The analysis of the amount of land needed to accommodate the projected population, as re- vised in Amendment 62, does not support plan amendments 18, 37, 40, 41 and 47 which propose to extend the UDB by an additional 845 acres. The analysis demonstrates that there is ade- quate amount of land uses designated within the current UDB to accommodate the projected population within the planning timeframe. Therefore, the extension of the UDB into the East Everglades area would encourage urban sprawl. Recommendation Revise the plan amendments to be consistent with the analysis. The plan amendments must justify the proposed need for additional land outside of the current UDB to accommodate the projected population. 3. 9J-5.006(2)(e) The analysis of the proposed development of flood prone areas does not support plan amend- ments 18, 37, 40, 41 and 47 which would extend the UDB by 845 acres. The new growth would be directed into the flood prone areas on the eastern edge of the Everglades. . . . Recommendation Revise the plan amendments to not extend the UDB and to either retain the existing land uses or designate land uses that are compat- ible with the environmentally sensitive nature of . . . the Everglades region. Goals, Objectives and Policies 4. 9J-5.006(3)(b)1. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 1, page I-1, which states that decisions regarding the location of future land use in Dade County will be based on the physical and financial feasibility for providing services as adopted in the CDMP. The analysis demonstrates that the County has not planned on providing services outside the existing UDB; therefore the extension of the UDB at this time would appear to be premature. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 8. 9J-5.006(3)(b)7. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 3, page I-4, which states that the urban growth shall emphasize concentration around centers of activity rather than sprawl. The analysis of the land needed to accommodate the projected population demonstrates that there will be an adequate supply of vacant land within the UDB for the duration of the planning timeframe. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 12. 9J-5.006(3)(c)3. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Policy 1B, page I-1, which states that the County will first provide services for the area within the UDB. The amendments are located outside of the existing UDB and the analysis demonstrates that there is no need to extend the UDB for residential or industrial land uses. Recommendation Retain the UDB as currently delineated. * * * Future Land Use Map(s) 14. 9J-5.006(4)(a) Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are not supported by the data and analysis. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These ex- tensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development Boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and to pro- tect the environmental integrity of the Ever- glades. * * * PORTS, AVIATION AND RELATED FACILITIES A. OBJECTIONS * * * Goals, Objectives and Policies 1. 9J-5.009(3)(c)1. Plan amendments 38 and 39, which would change industrial/office land use to low density resi- dential, are inconsistent with Policy 4C, page IV-4, which supports zoning that would protect existing and proposed aviation flight paths. These amendments would promote the encroachment of residential land uses into the Tamiami Airport area guaranteeing a future conflict of land uses. Recommendation Retain the existing land uses or propose land uses that would be compatible with the existing airport and the surrounding supporting aviation industries. * * * SANITARY SEWER, SOLID WASTE, DRAINAGE, POTABLE WATER, AND NATURAL GROUNDWATER AQUIFER RECHARGE ELEMENT A. OBJECTIONS Goals, Objectives, and Policies 1. 9J-5.011(2)(b)3. Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are inconsistent with Objective 1 and Policy 1A, page VII-1, which state that the area within the UDB shall have first priority for urban services as a measure to discourage urban sprawl. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These extensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and protect the environmental integrity of the Everglades. The ORC also addressed the proposed plan amendment's consistency with the State of Florida Comprehensive Plan (State Plan) and the Regional Plan for South Florida (Regional Plan), which was prepared and adopted by the South Florida Regional Planning Council. The following was alleged with respect to the proposed amendment's consistency with the State Plan: STATE COMPREHENSIVE PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021 The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following sub- sections of s. 187.201, F.S. (1988 Supplement), State Comprehensive Plan policies: Housing (5)(b)3., which requires the supply of safe, affordable and sanitary housing for low and moderate income persons and the elderly, because the proposed amendments would change existing residential uses, that would be feasible for affordable housing, to non-residential uses; and Water Resources (8)(b)4., which requires the protection and use of natural water systems in lieu of struc- tural alternatives and restore modified sys- tems, because the proposed amendments would create land uses which would encroach upon wellfield protection areas; and Coastal and Marine Resources (9)(b)4., which requires the protection of coastal resources, marine resources, and dune systems from the adverse effects of develop- ment, because of the proposed amendment to change definitions which would give residen- tial densities to submerged marine lands; and Natural Systems and Recreational Lands (10)(b)7., which requires the County to pro- tect and restore the ecological functions of wetland systems to ensure their long-term environmental, economic and recreational value, because the proposed amendments would expand the UDB into the East Everglades Area and potentially permit noncompatible land uses within wetland study areas and wellfield pro- tection areas; and (10)(b)8., which requires promotion of res- toration of the Everglades system and of the hydrological and ecological functions of de- graded or substantially disrupted surface waters, because of the proposed amendment which would expand the UDB into the East Everglades Area; and Land Use (16)(b)2., which requires incentives and dis- incentives which encourage a separation of urban and rural land uses, because the pro- posed amendments would expand the UDB into the East Everglades Area which would encourage urban sprawl; and Public Facilities (18)(b)1., which requires incentive for devel- oping land in a way that maximizes the uses of existing public facilities, because the pro- posed amendments would remove residential uses along arterials and reduce the effectiveness of the mass transit system. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and implementing policies, supported by adequate data and analysis, that are consistent with the above-referenced poli- cies of the State Comprehensive Plan. The following was alleged in the ORC concerning the proposed amendment's consistency with the Regional Plan: REGIONAL POLICY PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021(1) The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following subsections of the Regional Plan for South Florida: Policy 57.1.2., which requires giving priority to development in areas within which adequate services are either programmed or available, because of the proposed amendments which would expand the UDB into the East Everglades Area; and Policy 64.2.1, which requires that land use around the airport be strictly controlled to prevent unnecessary social or economic con- flicts and costs, because of the proposed amendments which would place residential uses in close proximity to Tamiami Airport; and Policy 69.1.1., which encourages appropriate activities to ensure the continued viability of agriculture, because the proposed amend- ments which would expand the UDB into the East Everglades Area. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and policies, supported by adequate data and analysis, that are consis- tent with the policies of the Regional Plan for South Florida. Under the heading of "Internal Consistency" in the ORC, the following remarks were made: INTERNAL CONSISTENCY OBJECTIONS 1. 9J-5.005(5)(b) Each map depicting future conditions in the plan (including the future land use map) must reflect goals, objectives and policies in each element, as those goals, objectives and policies exist or are modified to meet the requirements of Chapter 9J-5, F.A.C., Chapter 163, F.S., the State Comprehensive Plan (Chapter 187, F.S.) and the comprehensive regional policy plan, as recommended in this report. Recommendation Ensure that future conditions maps are modi- fied to reflect goals, objectives and policies in each element. COMMENTS See individual elements. Those objections, recommendations and comments made in the ORC that are not recited above specifically referenced applications other than Applications 39, 40 and 47. The Planning Department's Response to the ORC On March 21, 1990, the Planning Department published a written response to the ORC (Response). In its Response, the Planning Department concurred with the position that Applications 39, 40 and 47 should not be approved, but it took issue with certain statements made in the ORC relating to these applications. The Planning Department pointed out that the "East Everglades was the area located west of the L-31 Everglades containment levee and south of the Tamiami Trail," and that "[A]pplications [18, 37, 40, 41 and 47 we]re no closer than two miles [to the east] of the East Everglades" and did not extend to any areas designated "environmental protection" on the FLUM. The Planning Department further noted that the Application 40 property and the Application 47 property were not subject to recurring flooding. With respect to the lone objection in the ORC which specifically mentioned Application 39, the Planning Department observed that it "incorrectly cite[d] Policy 4C [of the Port and Aviation Facilities Element of the CDMP]; it should be Policy 4D." The Planning Department added that, although the Department had not so indicated, Application 39 was "also inconsistent with Objective 8 of the Port and Aviation Element which seeks to maximize compatibility between airports and the surrounding communities." Combined Recommendations of the Planning Department and the PAB On February 27, 1990, and February 28, 1990, respectively, following a joint public hearing held on February 23, 1990, the Planning Department, acting in its capacity as the local planning agency, and the PAB adopted resolutions containing their recommendations to the Board of County Commissioners regarding the final action to be taken on the applications filed during the Amendment Cycle. Thereafter, prior to the final adoption hearing, the Planning Department published a document entitled "Combined Recommendations of the Metropolitan Dade County Planning Department (Local Planning Agency) and the Planning Advisory Board" (CR Report), which set forth these recommendations, and summarized the rationale upon which they were based. Both the Planning Department and PAB recommended that Application 39 be denied. According to the CR Report, these recommendations were based upon the following considerations: The south boundary of this site is located only two blocks from the Kendall-Tamiami Execu- tive Airport. The application area is within the area designated on County comprehensive plans as industrial/commercial since 1965 to insure airport/community compatibility. The continued non-residential designation of this area also conforms to the standard adopted in 1989 by the State Legislature (but vetoed by the Governor because of unrelated funding pro- visions) which provided that "residential construction should not be permitted within an area contiguous to an airport measuring one-half of the length of the longest runway on either side of each runway centerline." The Aviation Department estimates that the housing proposed in the application area would be subject to more than ten times ambient noise levels which would result in many complaints from occupants. For example, virtually all of the 5,200 petitioners concerned about perceived airport noise impacts of the recently rejected runway extension lived further from the airport than would the occupants of housing proposed within the area. Approval of this application would conflict with the need for the County to protect its airport, and with the need to retain opportunity sites for employment activities in west Kendall. The Planning Department recommended that Application 40 be denied. According to the CR Report, this recommendation was based upon the following considerations: This Application is located in the Agri- cultural area west of Black Creek Canal. The Agricultural Land Use Plan adopted by the Board of County Commissioners established that Canal as the Agricultural area boundary in this area of the County, to be amended for urban development only at such time as there is a documented need. The Planning Department believes that the need does not yet exist. 20/ Approval of this Application would be premature. The CDMP currently contains within the year 2000 Urban Development Boundary (UDB), enough land countywide to sustain projected industrial needs well beyond the year 2010, and residential needs to the year 2015. Within this Study Area there is also enough industrial land to accommodate projected residential growth beyond the year 2010 and to accommodate projected residential growth until the year 2005. While current projections indicate that the single family supply west of the Turnpike between Kendall Drive and Eureka Drive does not contain much surplus beyond the year 2000, the CDMP provides alternative loca- tions, including an abundance of supply in the Turnpike corridor south of Cutler Ridge. The Planning Department will closely monitor growth trends in the various subareas of the County and will recommend adjustments when warranted in the future. The PAB recommended that Application 40 be approved. The CR Report indicated that the PAB's reasoning with respect to this matter was as follows: Because this is the area where people want to live, sprawl is justified and the urban devel- opment boundary should be expanded. In re- sponse to DCA's objections, the PAB noted that services are available adjacent to this Appli- cation. Both the Planning Department and PAB recommended the denial of Application 47. The following reasons were given in the CR Report for their recommendations: The area is currently designated Agricul- ture on the Land Use Plan map, and is used for agricultural purposes. The Agricultural Land Use Plan adopted by the Board of County Commis- sioners recommends that the area designated Agriculture should not be redesignated for urban use until there is a documented need for more urban land. Approval of this Application would be very premature. The CDMP currently contains enough land within the year 2000 Urban Development Boundary in this Study Area to accommodate projected demand well beyond the year 2010. Similarly, in the area west of US 1 there is enough land for single-family type residences to accommodate projected demand through the year 2010. There is no current need to promote urban development of this Application area. This site contains fifteen acres of Dade County pine forest listed in Dade County's forest land inventory as having high environ- mental quality. It should not be prematurely urbanized. The Final Adoption Hearing: The Department's Participation On March 12, 1990, Mayor Clark mailed, by United States Express Mail, a letter to the Department requesting that it participate in the hearing at which final action would be taken by the Board of County Commissioners on the outstanding applications filed during the Amendment Cycle. The body of the letter read as follows: The Board of County Commissioners requests that the Florida Department of Community Affairs participate in its hearing to address biennial applications requesting amendments to the 2000-2010 Comprehensive Development Master Plan (CDMP) for Metropolitan Dade County. This request is made pursuant to Section 9J-11.011(2) of the Florida Adminis- trative Code and Section 2-116.1(4) of the Code of Metropolitan Dade County. The public hearing will be held on Monday, March 26, 1990, at 9:00 AM in the Commission Chambers, 111 N.W. 1 Street, Miami. If neces- sary, this hearing will be continued on Tuesday, March 27, 1990, in the Commission Chambers. The purpose of this hearing is to afford the Board of County Commissioners an opportunity to hear the applicants explain their applica- tions and to receive public comments on the applications, on the "Objections, Recommenda- tions, and Comments" report submitted by the Florida Department of Community Affairs, and on the recommendations of the Planning Advi- sory Board and of the Local Planning Agency. At the conclusion of this hearing, the Board of County Commissioners will take final action to approve, approve with change, or deny each of the applications. Should you or your staff need any assistance or additional information regarding this hearing, please contact Mr. Robert Usherson, Chief, Metropolitan Planning Division, Metro-Dade Planning Department, at (305)375-2835, (Suncom) 445-2835. The Department, by letter, advised Mayor Clark that it would send a Department representative to "participate" in the hearing. The body of the letter read as follows: In response to your request of March 12, 1990, the Department of Community Affairs will send a representative to participate in the March 26, 1990, public hearing to adopt the proposed Metro Dade County comprehensive plan amendments. The Department's representative is authorized to restate our position as expressed in the Department's February 3, 1990 [sic] Objections, Recommendations and Comments Report, and to listen to all parties. It is the Department's position that the adoption public hearing is not the proper forum for modifying the Depart- ment's position or approving proposed revisions to the comprehensive plan. The Department's representative will be without authority to modify the Department's position or approve proposals discussed at the public hearing. The Department's representative will be authorized, however, to comment on proposals to resolve objections included in the report. Final approval of any proposal may only be granted by the Secretary of the Department of Community Affairs. The Department's role with respect to approv- ing proposed revisions will begin upon adop- tion and submittal of the comprehensive plan, pursuant to Chapter 9J-11.011, Florida Admin- istrative Code. If I may be of further assis- tance in this matter, please contact me at (904)488-9210. The Department representative selected to attend the final adoption hearing was Harry Schmertman, a Planner IV with the Department. Schmertman had not been involved in the preparation of the ORC. He reviewed the report, however, before attending the hearing. Schmertman arrived at the Commission Chambers on the morning of March 26, 1990, prior to the commencement of the hearing. Upon his arrival, he spoke with the County's Planning Director and requested that he be recognized at the outset of the hearing. The Planning Director responded that "the Mayor would take care of that." Following this conversation, Schmertman took a seat "[a]pproximately five or six rows back [from the front] in the center of the auditorium." Thereafter, the hearing formally convened. Shortly after the commencement of the hearing, before any applications were discussed, Mayor Clark introduced Schmertman and indicated that he was attending the hearing on behalf of the Department. Immediately following the Mayor's introduction of Schmertman, the Chairman of the PAB, Lester Goldstein, presented the PAB's recommendations to the Board. During his presentation, Goldstein expressed disappointment over the various factual inaccuracies in the Department's ORC. Schmertman did not respond to Goldstein's comments, nor did he at any time attempt to modify or explain any statement or position taken by the Department in the ORC. Indeed, he made no public remarks while in attendance at the hearing. While Schmertman did not address the Board of County Commissioners at the hearing, at no time during the hearing was he asked to do so. Furthermore, the members of the Board gave no indication that they did not understand, and therefore needed clarification of, the Department's position on the applications under consideration. At around 4:30 p.m., before the conclusion of the hearing on that day, Schmertman left the Commission Chambers to return to Tallahassee. Neither he, nor any other Department representative, was present for the remainder of the hearing on that day or for the continuation of the hearing on the following day, when public discussion and debate ended and a formal vote was taken on each of the pending applications. 21/ Schmertman did not tell anyone that he was leaving the Commission Chambers. He reasonably believed, however, that there was no need to announce his departure because he was "in a very obvious location . . . and was very visible leaving." No member of the Board, nor any other County representative, asked Schmertman, as he was leaving, to remain until the conclusion of the hearing. The Final Adoption Hearing: The Objectors' Participation The Redland Citizen Association, Inc. (RCA) is a nonprofit Florida corporation, which has as its stated purpose and primary activity the preservation and promotion of the agrarian character and lifestyle of the Redlands area of South Dade. The RCA engages in fundraising to obtain the financial resources necessary to accomplish this objective. The RCA has approximately 700 to 800 members, all of whom reside in or around the Redlands in Dade County. At all times material hereto, Martin Motes has been a member of the RCA, resided in a home that he owns in the Redlands, and owned and operated a wholesale orchid nursery business located on property adjacent to his residence, three quarters of a mile north of the Application 47 property. Motes appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the RCA and its members, including himself, he expressed opposition to Application 47. He argued that the change sought through this application was "premature" and constituted an "unwarranted and unwanted" extension of urban development into a viable agricultural area. Neither Motes, nor any other representative of the RCA, objected to any application other than Application 47. 22/ The Sierra Club is a nonprofit national organization organized for the following purpose: To explore, enjoy and protect the wild places of the earth, to practice and promote the re- sponsible use of the earth's ecosystems and resources, to educate and enlist humanity to protect and restore the quality of the natural and human environment, and to use all lawful means to carry out these objectives. The Sierra Club, Miami Group, is a local division of the national organization specifically chartered to include residents of both Dade and Monroe Counties. It has a Dade County address. At all times material hereto Bruce Rohde has been a member of the Sierra Club and resided in a home that he owns in Dade County. Rohde appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the Sierra Club and its members, including himself, he expressed opposition to Applications 40 and 47, among others. He contended that the extensions of the UDB requested through Applications 40 and 47 were "premature." Neither Rohde, nor any other representative of the Sierra Club, objected to Application 39. The League of Women Voters of the United States is a national organization. The League of Women Voters of Florida is a state organization. The League of Women Voters of Dade County, Inc. (League) is a nonprofit Florida corporation affiliated with the national and state organizations. The League's purpose, as stated in its Articles of Incorporation, is as follows: [T]o promote political responsibility through informed and active participation of citizens in government and to take action on govern- mental measures and policies in the public interest in conformity with the principles of The League of Women Voters of the United States and The League of Women Voters of Florida. It engages in fundraising to obtain the financial resources necessary to accomplish this objective. The League rents office space in Dade County out of which it conducts its operations. 23/ At all times material hereto, Carol Rist has been a member of the League, resided in a home that she owns in Dade County, and owned and operated a Dade County business. Rist appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the League and its members, including herself, she expressed opposition to various applications, including Applications 39, 40 and 47. With respect to Applications 40 and 47, her arguments were similar to those advanced by Rohde at the hearing. As to Application 39, she contended that Wellenhofer's property was too close to the airport to be used for residential purposes and that it was a desirable site for the location of an office complex to which residents of the West Kendall area would be able to commute. 24/ At all times material hereto, Evelyn B. Sutton has resided in a home that she owns in the eastern half of the Application 47 property. Sutton appeared before the Board of County Commissioners at the final adoption hearing. She expressed her opposition to Application 47, contending that its approval would have an adverse impact upon the unique agrarian character and lifestyle of the Redlands. She did not object to any application other than Application 47. At all times material hereto, Frances L. Mitchell has resided in a home that she owns in the eastern half of the Application 47 property. Mitchell and some of her neighbors retained an attorney, who appeared before the Board of County Commissioners at the final adoption hearing and made a presentation on their behalf. The attorney advised the Board that his clients were in opposition to Application 47 because it was "premature" and represented unneeded "leapfrog residential development in the heart of the Redlands." Neither Mitchell, her attorney, nor any other representative acting on her behalf, objected to any application other than Application 47. At all times material hereto, Rod Jude has resided in a home that he owns in Dade County and owned and operated a Dade County wholesale nursery business. Jude appeared before the Board of County Commissioners at the final adoption hearing. He expressed his opposition to Application 40, arguing that there was no demonstrated need for the conversion of the Application 40 property to non-agricultural uses. Jude also objected to Applications 37, 41 and 42. He did not address either Application 39 or Application 47. The Final Adoption Hearing: The Applicants' Participation Jeffrey E. Lehrman, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 39 on behalf of Wellenhofer. In addition to making an oral presentation, Lehrman gave the members of the Board written materials. During his presentation, Lehrman stated, among other things, the following: Application 39 represented infill, not leapfrog, development; such development would not adversely impact upon, nor would it be adversely impacted by, the Tamiami Airport; there had been significant residential development in the area around Wellenhofer's property in recent years; the approval of Application 39 would not interfere with any existing flight patterns; Wellenhofer's property was not under an existing flight path, but rather was in a "hole-in-the-doughnut" and therefore was distinguishable from properties that were the subject of other applications; Tamiami's north runway was an auxiliary runway unequipped to handle operations at night and in bad weather; the applicable 65/75 LDN noise contour did not intrude upon Wellenhofer's property; the new statute that the Planning Department had referenced in recommending denial of Application 39 had been vetoed by the Governor and therefore was really no statute at all; helicopter training took place on the south, rather than the north, side of the airport; and if Application 39 was approved, a buffer of industrial land would still exist between Wellenhofer's property and the airport. Thomas Carlos, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 40 on behalf of the Suchmans. Carlos was assisted by James Holland, a professional planner with the firm of Post, Buckley, Shuh and Jernigan (Post Buckley), Jack Schnettler, a professional traffic engineer with Post Buckley, Richard Tobin, President of Strategy Research Corporation, Inc. (SRC), a national research firm with offices in Florida, and Richard Roth, Vice- President of SRC in charge of planning research studies. During his opening remarks, Carlos advised the County Commission that the Suchmans had executed a covenant obligating themselves to developing their property in accordance with the Traditional Neighborhood Development concept. He then introduced Holland to the Commission. During his presentation, Holland did, among other things, the following: summarized the contents of Table 1G of the PR Report relating to the environmental, physical and archaeological/historic conditions that existed on the Application 40 property; contrasted the Application 40 property with the undeveloped lands in MSA 6.1 already within the UDB which, he argued, had marginal development potential because of undesirable environmental constraints; opined that, as a consequence of these impediments to development in MSA 6.1, MSA 6.2 would experience an increase in demand; showed a graphic depicting land use patterns in and around the Application 40 property, including the amount of land available for residential development in the area; displayed another graphic showing future Urban Services Areas in unincorporated Dade County, including the Tamiami area; in conjunction with the these graphics, argued that the residential development of the Application 40 property was in furtherance of the Tamiami area's designation as an employment center; quoted from a Planning Department report that suggested that development around the Tamiami Airport would reduce metropolitan transportation needs; asserted that the use of the Application 40 property for residential purposes would comply with federal guidelines as well as those found in the CDMP; in support of this assertion, presented a graphic illustrating that no part of the proposed residential portion of the Application 40 property would be included in the 65/75 LDN contours which measure the noise generated by airport operations; and described the urban services which were available or programmed to serve the Application 40 property. Jack Schnettler's presentation addressed traffic and transit issues. He presented a graphic showing the existing and programmed transportation network in the vicinity of the Application 40 property and highlighted particular improvement projects that he considered worthy of note. In describing the this transportation network, he commented that it augmented the employment center character of the area. Schnettler expressed the view that the property would be adequately served by transit and roadways. In addition, he disagreed with the Planning Department's forecast that approval of Application 40 would adversely impact upon the level of service on Southwest 177th Avenue, which, he noted, was located one and half miles to the west of the application property. Tobin and Roth briefly summarized a written report that SRC had prepared for the Suchmans and other private applicants (SRC Report). The report analyzed housing demand in the West Kendall area. The SRC Report concluded that the supply of residential land in MSA 6.2 25/ would be depleted in the year 2004 under a low case scenario, in 1998 under a medium case scenario, and in 1996 under a high case scenario, which the report opined, without explanation or reasonable justification, was "the one most likely to occur." As noted above, in its PR Report, the Planning Department had projected a depletion year of 2006, which the SRC Report criticized as being "out of touch with reality." In making its projections, SRC compared the yearly average of new housing units built and sold in MSA 6.2 from 1980 to 1984, which was a down period for the housing industry in Dade County, to the yearly average of new housing units build and sold in MSA 6.2 from 1985 to 1988, which was a boom period for the housing industry in the County. The information used by SRC regarding the number of housing units constructed and sold during these years was obtained from the Dade County Tax Assessor's office. Under the low case scenario, SRC assumed that housing demand in MSA 6.2 would remain constant at its 1985 to 1988 yearly average of 1,780 units. Under the medium case scenario, SRC assumed that the rate of housing demand would increase by about 35% over the 1985 to 1988 experience (which was 70% above the 1980 to 1984 experience). Under the high case scenario, SRC assumed that the 70% increase in housing demand between 1980 to 1984 and 1985 to 1988 would continue unabated until the supply of residential land was depleted, an assumption that is even more unrealistic than the assumptions underlying low and medium case scenarios. SRC reached these conclusions without analyzing housing demand on a countywide basis. Neither did it rely upon any population projections, notwithstanding that housing demand is driven by population growth. Furthermore, it did not take into consideration the cyclical fluctuations that characterize the housing market, nor did it account for vacant units in its projections. A professionally accepted methodology is one that is replicable, transparent, documented, free of error and inaccuracies, based upon assumptions that are clearly stated and reasonable and designed to avoid improbable and unlikely outcomes given past trends. In projecting housing demand for MSA 6.2., SRC did not utilize a methodology meeting these requirements. In addition to the oral presentations made by Carlos, Holland, Schnettler, Tobin and Roth, the Suchmans also presented to the Board of County Commissioners a written memorandum authored by Carlos and David S. Goldwich, Esquire, with attachments, including a copy of the SRC Report, copies of excerpts from Planning Department publications, and a copy of a recent article appearing in "New Miami Magazine," which reported that "Dade farmers, mostly by shifting production to new areas to the west actually increased total acres under tillage from 78,263 in 1981 to 84,534 in 1987" and that "Dade agricultural acreage [was] not expected to shrink substantially, despite encroachments by developers." The memorandum made many of the same arguments that were advanced by those who spoke on behalf of the Suchmans at the final adoption hearing. Robert Traurig, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 47 on behalf of Alajuela N.V. During his presentation, Traurig stated, among other things, the following: the Application 47 property was contiguous to the 1988 UDB; the failure to include the property within the UDB was an oversight that should be corrected; there was significant residential development surrounding the property in all directions; the area in which the property is located was an area in transition; it was changing from an agricultural area to one that was predominantly residential in character; as demonstrated by the recent development in the area, there was a demand for housing in this part of the County; most of the people who wanted to live in this area could not afford the five-acre estates allowed on property designated for "agricultural" use under the CDMP; the redesignation of the Application 47 property sought by Alajuela N.V. would not have an adverse impact on the agricultural industry in the County; such redesignation was not premature nor would it result in leapfrog development; there were no environmental impediments to the development of the Application 47 property; the elevation of the property was 11 feet above sea level and drainage was good; there were no wetlands on the site; the tree colony on the eastern half of the property would be protected by County ordinance; and there were roadways, parks, fire service and other urban services available to serve the property. The Final Adoption Hearing: The Aviation Director's Comments At the request of Commissioner Hawkins, Rick Elder, the County's Aviation Director, commented on four application properties in Study Area G that were in close proximity to the Tamiami Airport, including Wellenhofer's property. Elder stated that there were no flight patterns over Wellenhofer's property. With respect to noise, he noted that Wellenhofer's property was not within the 65/75 LDN contour. Elder did not indicate that he had any safety concerns regarding Application 39. The Final Adoption Hearing: Debate and Vote by the Board Following the conclusion of that portion of the final adoption hearing devoted to public discussion and debate on March 27, 1990, the Board of County Commissioners considered and voted on each of the pending applications. At the request of Commissioner Hawkins, the first application to be considered and voted on by the Board was the TND application, Application 71. The Board voted to approve Application 71. The remaining applications were considered and voted on in sequential order. During the Commissioners' debate on Application 39 and other applications in the vicinity of Tamiami Airport, Commissioner Gersten expressed the view that, with respect to these applications, neither noise nor safety should be a concern. Commissioner Schreiber concurred. Commissioner Valdes remarked that, although he was opposed to the other applications under consideration, he was not opposed to Application 39 because the property that was the subject of the application was not, according to Aviation Director Elder, under a flight pattern. Commissioner Dusseau indicated his opposition to Application 39. He argued that there was no need for residential development on Wellenhofer's property and that it was preferable to retain its "industrial and office" land use designation to further the creation of an activity center around the airport. Application 39 was approved by a five to three vote. When Application 40 came up for consideration, Commissioner Hawkins recommended that the application be modified. While he did not object to the extension of the UDB to include the Application 40 property, he suggested that only the application property owned by the Suchmans be redesignated for residential use. He explained that, not only would this modification eliminate concerns generated by the application regarding compatibility with airport operations, it would set the stage for the development of a TND in the West Kendall area. Commissioner Hawkins noted that the County Commission had long wanted to have a TND in this area and that the Suchmans were willing to develop their property as a TND if it was redesignated for residential use. Commissioner Dusseau responded to these comments by indicating that he favored the TND concept, but that he did not believe that the Suchmans property was where such a TND should be located. Application 40, as modified pursuant to Commissioner Hawkins' recommendation, initially failed to win approval on a tie vote. On the motion of Commissioner Winn, Application 40, as so modified, was reconsidered. On reconsideration, it was approved by a six to two vote. Application 47 was also approved by a six to two vote. Application 58, which proposed to allow new commercial agricultural uses within the UDB, and Application 62, with its revised population estimates and projections, were among the other applications that were approved by the Board of County Commissioners at the final adoption hearing. Of the applications seeking an extension of the UDB, only Applications 40 and 47 were approved. A total of 49 applications, either in their original form or as modified, were approved by the Board. The majority of these applications, like Applications 39, 40 and 47, sought to change one or more land use designations on the FLUM. Other approved applications, in addition to Applications 39, 40 and 47, that sought to have the Board of County Commissioners change a non- residential land use to a residential land use were Applications 12, 13, 14, 26, 28 and 44. 26/ Approximately 410 acres of land were redesignated on the FLUM from non-residential to residential land uses as a result of the approval of Applications 12, 13, 14, 26, 28, 39, 40, 44 and 47. Assuming that the properties that were the subject of these applications will be able to develop at the maximum residential densities indicated on the FLUM, these redesignations will have increased the supply of residential land in the County by approximately 1930 dwelling units. 208. The approval of Applications 1, 2, 3, 4, 9, 11, 14, 23, 27, 29, 45 and 46 resulted in the redesignation on the FLUM of approximately 115 acres of land from residential to non-residential land uses. Assuming that the properties that were the subject of these applications would have been able to develop at the maximum residential densities indicated on the FLUM, these redesignations may be said to have reduced the supply of residential land in the County by approximately 910 dwelling units. Applications 5, 6, 19, 22 and 24 sought to have land designated on the FLUM for "low density residential" use redesignated for "office/residential" use. Applications 8, 15 and 16 sought to have land designated on the FLUM "medium density residential" redesignated "office/residential." These eight applications were all approved. Approximately 105 acres of land were redesignated "office/residential" as a result of the approval of these eight applications. Assuming that the properties that were the subject of these applications would have been able to develop at their maximum pre-approval residential densities, as indicated on the FLUM, and further assuming that, after these redesignations, they will be developed as office sites exclusively, these redesignations may be said to have reduced the supply of residential land in the County by approximately 1960 dwelling units. If the assumption were made that these redesignated properties will experience both office and residential development 27/ and that the residential development will amount to one half the number of dwelling units that would have been constructed had the property not been redesignated, the reduction in the supply of residential land resulting from these redesignations instead would be 980 dwelling units. It is unlikely, however, that as many as 980 dwelling units will be built on these properties. There were other applications, in addition to those specifically mentioned above, that sought FLUM redesignations and were approved by the Board of County Commissioners, however, they involved a change from one non- residential land use to another non-residential land use and therefore did not have a direct impact on the supply of residential land in the County. When viewed collectively, the changes made by the Board of County Commissioners to the FLUM during the Amendment Cycle have not been shown to have resulted in any appreciable increase in the supply of residential land in the County as a whole. That is not to say, however, that the Board's actions did not serve to increase the supply of residential land in certain areas of the County. For instance, by virtue of its approval of Applications 40 and 47, the Board added to the supply of residential land on the urban fringe in Study Area G and Study Area I, respectively. Following its vote on each of the pending applications, the Board adopted Ordinance No. 90-28, which amended the CDMP in a manner consistent with Board's actions on these applications. (The CDMP, as so amended, will be referred to as the "1990 CDMP." Ordinance No. 90-28 will be referred to as the 1990 Plan Amendment.) The CDMP, as Amended by Ordinance No. 90-28: Key Provisions Statement of Legislative Intent The 1990 CDMP contains a Statement of Legislative Intent. It provides as follows: This Statement expresses the legislative in- tent of the Board of County Commissioners with regard to the Comprehensive Development Master Plan (CDMP). This statement is applicable to the CDMP in its entirety and is declared to be incorporated by reference into each element thereof. Nothing in the CDMP shall be construed or applied to constitute a temporary or permanent taking of private property or the abrogation of vested rights as determined to exist by the Code of Metropolitan Dade County, Florida. The CDMP shall not be construed to preempt considerations of fundamental fairness that may arise from a strict application of the Plan. Accordingly, the Plan shall not be deemed to require any particular action where the Plan is incomplete or internally inconsistent, or that would constitute a taking of private property without due process or fair compensa- tion, or would deny equal protection of the laws. The CDMP is intended to set general guide- lines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations. The CDMP contains long-range policies for Dade County. Numerous policies contained in the CDMP must be implemented through the County's land development regulations. Neces- sary revisions will be made to the County's land development regulations by the date required by Section 163.3202, FS. Other policies of the plan propose the establishment of new administrative programs, the modifica- tion of existing programs, or other administra- tive actions. It is the intent of Dade County that these actions and programs be initiated by the date that Dade County adopts its next Evaluation and Appraisal (EAR) report, unless another date is specifically established in the Plan. The CDMP is not intended to preempt the processes whereby applications may be filed for relief from land development regulations. Rather, it is the intent of the Board of County Commissioners that such applications be filed, considered and finally determined, and that administrative remedies exhausted, where a strict application of the CDMP would contravene the legislative intent as expressed herein. The Board recognizes that a particular application may bring into conflict, and neces- sitate a choice between, different goals, prior- ities, objectives, and provisions of the CDMP. While it is the intent of the Board that the land use element be afforded a high priority, other elements must be taken into consideration in light of the Board's responsibility to pro- vide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities. Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. The term "shall" as used in the CDMP shall be construed as mandatory, subject, however, to this Statement of Legislative Intent. The term "should" shall be construed as directory. The FLUM The FLUM is an integral part of the 1990 CDMP's future land use element. It shows the proposed distribution, extent and location of permitted land uses for the entire land area of Dade County and, in so doing, reflects the CDMP's goals, policies and objectives, to the extent possible. In addition to a year 2000 UDB, the FLUM also has a year 2010 Urban Expansion Area Boundary. There are 18 land use categories represented on the FLUM: estate density residential communities; low density residential communities; low-medium density residential communities; medium density residential communities; medium-high density residential communities; high density residential communities; industrial and office; restricted industrial and office; business and office; office/residential; institutional and public facility; parks and recreation; agriculture; open lands; environmental protection; environmentally protected parks; transportation; and terminals. The FLUM also depicts activity centers, expressways, major and minor roadways, levees, canals and other bodies of water. The following advisement is set forth on the face of the FLUM: This plan map is not a zoning map! Within each map category on this plan map, numerous land uses, zoning districts and housing types may occur. This plan map may be interpreted only as provided in the plan text entitled "Inter- pretation of the Land Use Plan Map: Policy of the Land Use Element." That text provides necessary definitions and standards for allow- able land uses, densities or intensities of use for each map category and for interpretation and application of the plan as a whole. That text must be interpreted in its entirety in interpreting any one plan map category, and no provision shall be used in isolation from the remainder. The land use plan map (LUP), in conjunction with all other adopted components of the Com- prehensive Development Master Plan (CDMP), will govern all development-related actions taken or authorized by Metropolitan Dade County. The LUP Map reflects municipal land use policies adopted in municipal comprehen- sive plans. However, this plan does not supersede local land use authority of incor- porated municipal governments currently auth- orized in accordance with the Metro-Dade Charter. For further guidance on future land uses authorized within incorporated municipal- ities, consult the local comprehensive plan adopted by the pertinent municipality. The Interpretative Text That portion of the 1990 CDMP entitled "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" (Interpretive Text) provides in pertinent part as follows with respect to the residential land use categories shown on the FLUM: Residential Communities The areas designated Residential Communities on the LUP map permit housing types ranging from detached single-family to attached multi- family structures including manufactured housing and mobile home parks. The residen- tial communities designations indicate the overall residential density for the area. Also permitted in residential communities, in keeping with the Plan's objectives and poli- cies, are secondary neighborhood and community serving uses such as schools, parks, and houses of worship. Some additional uses such as day care centers, foster care and group housing facilities and similar uses, and neighborhood serving institutional and utility uses may also be permitted in residential com- munities in keeping with the circumstances and conditions outlined in this section, and with the objectives and policies of this plan. * * * The Land Use Plan Map includes six residential density categories which are depicted on the Plan map by different symbols/colors. Each category is defined in terms of its maximum allowable gross residential density. Develop- ment at lower than maximum density is allowed and may be required where conditions warrant. For example, in instances where a large portion of the "gross residential acreage" is not a part of the "net" residential building area, the necessity to limit the height and scale of the buildings to that compatible with the sur- rounding area may limit the gross density. The categories do not have a bottom limit or min- imum required density; all categories include the full range of density from one dwelling unit per five acres up to the stated maximum for the category. . . . Estate Density. This density range is typi- cally characterized by detached estates which utilize only a small portion of the total par- cel. Clustering, and a variety of housing types may, however, be authorized. The maxi- mum density allowed in this category is 2.5 dwelling units per gross acre. Low Density. A larger number of units is allowed in this category than in the Estate density. The maximum density allowed is 6 dwelling units per gross acre. This density category is generally characterized by single family type housing, e.g., single family detached, cluster, zero lot line, and town- houses. It could possibly include low-rise apartments with extensive surrounding open space providing that the maximum gross den- sity is not exceeded. Low-Medium Density. This category allows up to 13 dwelling units per gross acre. The types of housing typically found in areas designated low-medium density include single family homes, townhomes, and low-rise apart- ments. Medium Density. This Density Category allows up to 25 dwelling units per gross acre. The type of housing structures typically permitted in this category include townhouses, low-rise and medium rise apartments. Medium-High Density. This category accommo- dates apartment buildings ranging up to 60 dwelling units per gross acre. In this cate- gory, the height of buildings, and therefore, the attainment of densities approaching the maximum, depends to a great extent on the dimensions of the site, conditions such as location and availability of services, ability to provide sufficient off-street parking, and the compatibility with, and impact of the development on surrounding areas. High Density. This category permits up to 125 dwelling units per gross acre. This den- sity is only found in a few areas located within certain municipalities where land costs are very high and where services will be able to meet the demands. * * * Traditional Neighborhood Developments (TNDs). Traditional neighborhood developments which incorporate a broad mixture of uses under specific design standards may also be ap- proved in Residential Communities in the manner specifically authorized in this sub- section. The purpose of the traditional neighborhood development is to enable the creation of new communities that offer social and architectural quality, characteristic of early American town planning. Many of these early models, developed prior to 1940, offer insight into the design of coherently planned communities. The concept is patterned after those inherent in these earlier developments and provides a design clarity through a hierarchy of streets, a focus towards pedes- trian activity, low scale community buildings and open squares as the focal point of the neighborhood. The County shall adopt land use regulations that incorporate the objectives of a traditional neighborhood development concept. . . 28/ Within areas designated on the LUP map as Res- idential Communities, a mixed use Traditional Neighborhood Development permitting business, office, industrial, artisanal, home occupa- tions, and other uses authorized by this subsection may be approved providing that the following criteria are met: The minimum contiguous land area is 40 acres and is not located within the Estate density category; and The site is under single-ownership at the time the master development plan or equivalent is approved; and Residential density does not exceed the density depicted on the Land Use Plan Map, except that a maximum density of ten dwelling units per acre may be approved in the Low Density category; and Public open spaces such as squares or parks comprise a minimum of five acres or five percent of the developed area, whichever is greater; and Civic uses, such as meeting halls, schools, day care centers and cultural facilities com- prise a minimum of two percent of the developed area; and Business, office and industrial uses, that are separate from residential mixed uses do not exceed seven percent of the gross land area; and Where the TND borders or is adjacent to land that is designated Estate, Low Density or Low-Medium Residential and land so designated is used for residences or is vacant, the sep- arate business, office, and industrial uses identified in item No. 6 above, and those business, office, and industrial uses mixed with other uses shall not be permitted within 175 feet of the TND boundary and all non-residential components of such uses shall be acoustically and visually screened from said bordering or adjacent land; and when a TND borders land designated Agriculture or Open Land said business, office or industrial uses shall not be permitted within 330 feet of said TND boundary; and Residential, and residential uses mixed with shop-front, artisanal and home occupation uses comprise the remainder of the developed area; and In calculating gross residential density uses listed in item No. 6 shall be excluded, all other uses may be used to determine the maximum permitted density. The Interpretive Text provides that, with respect to the "office/residential" land use category, "[u]ses allowed in this category include both professional and clerical offices and residential uses." The following is stated in the Interpretative Text in pertinent part with respect to the "agriculture" land use category: Agriculture The area designated as "Agriculture" contains the best agricultural land remaining in Dade County. 29/ The principal uses in this area should be agriculture, uses ancillary to and directly supportive of agriculture such as packing houses on compatible sites, and farm residences. Uses ancillary to, and necessary to support the rural residential community of the agricultural area may also be approved, including houses of worship and local schools. In order to protect the agricultural industry it is important that uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed in this area. Residential development that occurs in this area is allowed at a density of no more than one unit per five acres. 30/ Creation of new parcels smaller than five acres for residential use may be approved in the Agriculture area only if the immediate area surrounding the subject parcel on three or more sides is predominantly parcelized in a similar manner, and if a division of the sub- ject land would not precipitate additional land division in the area. No business or industrial use should be approved in the area designated Agriculture unless the use is directly supportive of local agricultural production, is located on an existing arterial roadway, and has adequate water supply and sewage disposal in accordance with Chapter 24 of the County Code, and the development order specifies the approved use(s). Other uses compatible with agriculture and with the rural residential character may be approved in the Agriculture area only if deemed to be a public necessity, or if deemed to be in the public interest and no suitable site for the use exists outside the Agriculture area. Existing quar- rying and ancillary uses in the Agriculture area may continue operation and be considered for approval of expansion. Also included in the Agriculture area are enclaves of estate density residential use approved and grandfathered by zoning, owner- ship patterns and platting activities which predate this Plan. The grandfather provisions of Sections 33-196, 33-280, and 33-280.1 of the Dade County Code shall continue to apply to this area except that lots smaller than 15,000 square feet in area are not grandfathered hereby. Moreover, all existing lawful uses and existing zoning are deemed to be consistent with this Plan unless such a use or zoning: (a) is found through a subsequent planning study, as provided in Land Use Policy 5D, to be inconsistent with the foregoing grandfather provisions or with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as deter- mined by the Code of Metropolitan Dade County, Florida. . . . Also deemed to be consistent with this Plan are uses and zoning districts which have been approved by a final judicial decree which has declared this Plan to be invalid or unconstitutional as applied to a specific piece of property. This paragraph does not, however, authorize the approval or expansion of any use inconsistent with this plan. To the contrary it is the intent of this Plan to contain and prevent the expansion of inconsistent development in the Agriculture area. Activity centers are described in the Interpretative Text as "high- intensity design unified areas which will contain a concentration of different urban functions integrated both horizontally and vertically." The Interpretative Text contains the following discussion regarding the UDB: Urban Development Boundary The Urban Development Boundary (UDB) is in- cluded on the LUP map to distinguish the area where urban development may occur through the year 2000 from the areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2000 provided that level-of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by expanding the UDB when the need for such expansion is deter- mined to be necessary through the Plan review and amendment process. The CDMP seeks to facilitate the necessary service improvements within the UDB to accom- modate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infra- structure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be per- mitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element. The entire unincorporated area within the UDB is eligible to receive and utilize Severable Use Rights (SURs) in accordance with provi- sions of chapter 33-B, Code of Metropolitan Dade County. Accordingly, certain developments as specified in Chapter 33-B may be entitled to density or floor area bonuses as authorized by Chapter 33-B. No new commercial agricultural use of property may be established within the Urban Development Boundary, except on property designated Agri- culture on the LUP map or zoned AU (agricultural) or GU (interim). 31/ All property within the Urban Development Boundary not designated Agri- culture or zoned AU or GU shall not be permit- ted to be used for the establishment of any new commercial agricultural use. An additional exception is that land in utility easements or rights-of-way may be approved for new commercial agricultural uses where the use would be compat- ible with, and would have no unfavorable effect on, the surrounding area. Commercial agricultural uses include, without limitation, all uses of property associated with commercial horticulture; floriculture; viticulture; forestry; dairy; livestock; poultry; apiculture; pisciculture, when the property is used principally for the production of tropical fish; all forms of farm production; and all other such uses, except retail nurseries and retail greenhouses. Inci- dental agricultural use of property specifi- cally authorized by zoning which is otherwise consistent with the LUP map does not constitute commercial agriculture within the meaning of this provision. The Urban Expansion Area is described as follows in the Interpretative Text: The Land Use Map also contains a year 2010 Urban Expansion Area (UEA) Boundary. The UEA is comprised of that area located between the 2000 UDB and the 2010 UEA Boundary. The Urban Expansion Area is the area where cur- rent projections indicate that further urban development beyond the 2000 UDB is likely to be warranted some time between the year 2000 and 2010. Until these areas are brought within the year 2000 UDB through the Plan review and amendment process, they are allowed to be used in a manner consistent with the provisions set forth for lands designated as "Agriculture" or the applicable "Open Land" area. Urban infrastructure and services should be planned for eventual extension into the UEA, sometime between the years 2000 and 2010. However, if water or sewer lines or major roadway improvements are extended beyond the UEA in order to serve a necessary public facility that has been approved consistent with the Comprehensive Development Master Plan, these improvements should be sized or restric- ted to accommodate only the needs of the public facility. The significance of the UDB and UEA Boundary is explained in the Interpretative Text as follows: Critical in achieving the desired pattern of development is the adherence to the 2000 Urban Development Boundary (UDB) and 2010 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that actions of one single-purpose agency does not foster development that could cause other agencies to respond in kind and provide facil- ities in unanticipated locations. Such uncoor- dinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives. The subject of plan amendments is also addressed in the Interpretative Text, which states the following on the subject: It is recognized that the development capacity of the area within the UDB and UEA will vary with time. Part of the supply will be util- ized and additional supply will be added from time-to-time through the approval of Plan Amendments. Some land will be built upon at densities which are higher than permitted by existing zoning because rezonings will occur in the future, and some development will occur at densities lower than that permitted by zoning. Moreover, impediments can arise to the utilization, at maximum potential densities, of all lands within the boundaries. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density or character of a particular area. Because the development capacity of the LUP map fluc- tuates with time, it will be reevaluated on a periodic basis as part of the Plan review and amendment process. The Interpretative Text enumerates the following as the "long- standing concepts embodied in Dade County's CDMP:" Control the extent and phasing of urban development in order to coordinate development with programmed provision of public services. Preserve and conserve land with valuable environmental characteristics, recreation uses, or scenic appeal. Encourage development in areas most suit- able due to soil conditions, water table level, vegetation type, and degree of flood hazard. Restrict development in particularly sensitive and unique natural areas. Maximize public ownership of beaches and shorelands within the Coastal Area to insure their preservation, conservation or public use. Minimize consumption of energy for trans- portation purposes and the amount of air pol- lution from transportation sources by encour- aging a more compact urban form. Shape the pattern of urban development to maximize the efficiency of existing public facilities and support the introduction of new public facilities or services such as improved mass transit systems. Preserve sound and stable residential neighborhoods. Rejuvenate decayed areas by promoting redevelopment, rehabilitation, infilling, and the development of activity centers containing a mixture of land uses. Promote development of concentrated activity centers of different sizes and char- acter to provide economies of scale and effi- ciencies of transportation and other services for both the public and private sectors. Redirect higher intensity development towards activity centers of areas of high countywide accessibility. Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs. Prohibit new residential development and other noise sensitive activities from locations near airport noise impact zones. Avoid excessive scattering of industrial or commercial employment locations. Encourage agriculture as a viable economic use of suitable lands. The Goal and Selected Objectives and Policies of the Future Land Use Element The following is the goal of the future land use element (FLUE) of the 1990 CDMP: Provide the best possible distribution of land use, by type and density, to meet the physical, social, cultural and economic needs of the present and future resident and tourist popu- lation in a manner that will maintain or improve the quality of the natural and man-made environ- ment and amenities, and ensure the timely and efficient provision of services. The following are among the objectives and policies found in the 1990 CDMP's FLUE: Objective 1 Decisions regarding the location, extent and intensity of future land use in Dade County, and urban expansion in particular, will be based upon the physical and financial feasi- bility of providing, by the year 2000, all urbanized areas with services at Levels of Service (LOS) which meet or exceed the minimum adopted in the Capital Improvements Element. Policies 1A. All development orders authorizing new, or significant expansion of existing urban lands uses, shall be contingent upon the pro- vision of services at the Levels of Service (LOS) which meet or exceed the LOS standards specified in the Capital Improvements Element (CIE). Metro required by Chapter 163.3202, Florida Statutes (F.S.), implement the requirements of Section 163.3202(2)(g), F.S. 1B. Priority in the provision of services and facilities and the allocation of financial re- sources for services and facilities in Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in allocations for services and facilities shall support the staged development of the Urban Expansion Area (UEA). * * * Objective 3 The location and configuration of Dade County's urban growth from 1989 through the year 2010 shall emphasize concentration around centers of activity, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl. Policies 3A. High intensity, well designed activity centers shall be facilitated by Metro-Dade County at locations having high countywide multimodal accessibility. * * * 3C. Metro-Dade shall approve infill devel- opment on vacant sites in currently urbanized areas, and redevelopment of substandard or underdeveloped environmentally suitable urban areas contiguous to existing urban development where all necessary urban services and facili- ties are projected to have capacity to accom- modate additional demand. 3D. Metro-Dade shall seek to prevent discon- tinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its biennial CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities. * * * 3H. Public facility and service providers shall give priority to eliminating any infra- structure deficiencies which would impede rehabilitation or renewal of blighted areas. 3I. In formulating or amending development regulations, Dade County shall avoid creating disincentives to redevelopment of blighted areas. Where redevelopment occurs within the urban area, requirements for contributions toward provision of public facilities may be moderated where underutilized facilities or surplus capacities exist, and credit toward required infrastructure contributions may be given for the increment of development replaced by redevelopment. * * * Objective 5 Dade County shall, by the year 2000, reduce the number of land uses which are inconsistent with the uses designated on the LUP map and interpretative text, or with the character of the surrounding community. Policies 5A. Uses designated on the LUP map and inter- pretative text, which generate or cause to generate significant noise, dust, odor, vibra- tion, or truck or rail traffic, shall be pro- tected from damaging encroachment by future approval of new incompatible uses such as residential uses. 5B. Residential neighborhoods shall be pro- tected from intrusion by uses that would disrupt or degrade the health, safety, tran- quility and overall welfare of the neighbor- hood by creating such impacts as excessive noise, light, glare, odor, vibration, dust, or traffic. 5C. Complementary, but potentially incompat- ible uses shall be permitted on sites with functional neighborhoods, communities or dis- tricts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements. Objective 6 Upon the adoption of this plan, all public and private activity regarding the use, development and redevelopment of land and the provision of urban services and infrastructure shall be consistent with the goal, objectives and poli- cies of this Element, with the adopted Population Estimates and Projections, and with the future uses provided by the adopted Land Use Plan (LUP) map and accompanying text entitled "Interpreta- tion of the Land Use Plan Map," as balanced with the Goals, Objectives and Policies of all Ele- ments of the Comprehensive Plan. Policies 6A. The textual material entitled "Interpre- tation of the Land Use Plan Map" contained in this Element establishes standards for allowable land uses, and densities or intensities of use for each land use category identified on the adopted Land Use Plan (LUP) map, and is declared to be an extension of these adopted Land Use Policies. 6B. All development orders authorizing a new land use or development, or redevelopment, or significant expansion of an existing use shall be contingent upon an affirmative finding that the development or use conforms to, and is consistent with the goal, objectives and poli- cies of the CDMP including the adopted LUP map and accompanying "Interpretation of the Land Use Plan Map." 6C. All planning activities pertaining to development and redevelopment in Dade County shall be consistent with the "Population Esti- mates and Projections" contained in this Element, and with the locations and extent of future land uses as identified by the LUP map and its interpretative text. 6D. The area population projections shown on the map of "Population Estimates and Projec- tions" shall be used to guide public and private entities in planning for urban devel- opment and redevelopment and to guide the location, timing, and capacity of all urban services and facilities. Objective 7 Beginning in 1989 Dade County shall maintain a process for periodic amendment to the Land Use Plan map, consistent with the adopted Goals, Objectives and Policies of this Plan, which will provide that the Land Use Plan Map accommodates urban expansion at projected countywide rates. Policies 7A. Activity centers, industrial complexes, regional shopping centers, large-scale office centers and other concentrations of signifi- cant employment shall be recognized as poten- tial structuring elements of the Metropolitan area and shall be sited on the basis of metro- politan-scale considerations at locations with good countywide multi-modal accessibility. 7B. Distribution of neighborhood or community serving retail sales uses and personal and pro- fessional offices throughout the urban area shall reflect the spatial distribution of the residential population, among other salient social, economic and physical considerations. 7C. Residential development shall occur in locations that are suitable as reflected by such factors as the following: recent trends in location and design of residential units; projected availability of service and infra- structure capacity; proximity and accessi- bility to employment, commercial and cultural centers; avoidance of natural resource degra- dation; and maintenance or creation of amenities. 7D. In conducting its planning, regulatory, and capital improvements and intergovernmental coordination activities, Dade County shall seek to facilitate planning of residential areas as neighborhoods which include recrea- tional, educational and other public facilities, houses of worship, and safe and convenient cir- culation of automotive, pedestrian and bicycle traffic. 7E. Through its planning, regulatory, capital improvements and intergovernmental coordination activities, Dade County shall continue to pro- tect agriculture as a viable economic use of land in Dade County. * * * 7G. Necessary utility facilities may be lo- cated throughout Dade County in all land use categories as provided in the "Interpretation of the Land Use Plan Map" text. 7H. The maintenance of internal consistency among all Elements of the CDMP shall be a prime consideration in evaluating all requests for amendment to any Element of the Plan. Among other considerations, the LUP map shall not be amended to provide for additional urban expansion unless traffic circulation, mass transit, water, sewer, solid waste, drainage and park and recreation facilities necessary to serve the area are included in the plan and the associated funding programs are demonstra- ted to be viable. 7I. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Ob- jectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at adopted LOS standards. Be compatible with abutting and nearby land uses; and Enhance or degrade environmental or histor- ical resources, features or systems of County significance. Objective 8 Dade County shall continue to maintain in the Code of Metropolitan Dade County and adminis- trative regulations, and shall enhance as nec- essary, by the date required by Section 163.3203, F.S., provisions which ensure that future land use and development in Dade County is consistent with the CDMP. * * * 8D. Dade County shall continue to investigate, maintain and enhance methods, standards and reg- ulatory approaches which facilitate sound com- patible mixing of uses in projects and communi- ties. 8E. Dade County shall enhance and formalize its standards for defining and ensuring compatibility among proximate uses, and requirements for buffer- ing. Factors that will continue to be considered in determining compatibility include, but are not limited to noise, lighting, shadows, access, traffic, parking, height, bulk, landscaping, hours of operation, buffering and safety. Objective 9 Energy efficient development shall be accom- plished through metropolitan land use patterns, site planning, landscaping, building design, and development of multimodal transportation systems. Policies 9A. Dade County shall facilitate contiguous urban development, infill, redevelopment of substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed use projects to promote energy conservation. Selected Goals, Objectives and Policies of Other Elements The following is the goal of the 1990 CDMP's traffic circulation element: Develop, operate and maintain a safe, efficient and economical traffic circulation system in Metropolitan Dade County that provides ease of mobility to all people and for all goods, is consistent with desired land use patterns, conserves energy, and protects the natural environment. Policy 4C. of the traffic circulation element provides as follows: Dade County's priority in construction, main- tenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan Map. Second priority in transportation allocations shall support the staged develop- ment of the urbanizing portions of the County within the Urban Expansion Area. Transporta- tion improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas. The following are among the objectives and policies of the 1990 CDMP's aviation subelement: Objective 4 Minimize air space interactions and obstruc- tions to assure the safety of aviation users and operators and residents of Dade County. Policies * * * 4D. Support zoning that would protect exis- ting and proposed aviation flight paths con- sistent with federal agency guidelines. 4E. Seek federal agency cooperation in pro- tecting future air space from development obstructions. * * * Objective 8 Maximize compatibility between airports and the surrounding communities. Policies * * * 8B. Dade County shall implement Federal Aviation Administration FAR Part 150 Noise Compatibility Studies completed for appro- priate airports through the Land Use Element of the Dade County Comprehensive Master Plan, the Dade County Zoning Ordinance, and the South Florida Building Code to provide for land use compatibility in the vicinity of these air- ports. Objective 6 and Policy 6A. of the 1990 CDMP's housing element provide as follows: Objective 6 Increase residential accessibility to public facilities, services, and employment centers throughout the County to include parks and other recreational amenities. Policies 6A. Utilize existing planning and programming mechanisms to insure that new residential devel- opment occurs only if it is coordinated with plans for the provision of an adequate level of services and facilities. Policy 6C. of the 1990 CDMP's conservation, aquifer recharge and drainage element provides as follows: Areas in Dade County having soils with good potential for agricultural use without addi- tional drainage of wetlands shall be protected from premature urban encroachment until the need for such urban conversion is demonstrated. Objective 1 and Policy 1A. of the 1990 CDMP's water, sewer and solid waste element provide as follows: Objective 1 In order to serve those areas where growth is encouraged and discourage urban sprawl, the County shall plan and provide for potable water supply, sanitary sewage disposal, and solid waste disposal services on a countywide basis in concert and in conformance with the future land use element of the comprehensive plan. Policies 1A. The area within the Urban Development Boundary of the adopted Land Use Plan Map shall have the first priority in providing potable water supply, sanitary sewage disposal, and solid waste disposal services, and for commit- ting financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Space, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health or safety. Objectives 3, 4 and 5 and Policies 3B., 4A., 4B. and 5A. of the 1990 CDMP's capital improvements element provide as follows: Objective 3 Upon adoption of this Plan land use decisions will be made in the context of available fiscal resources such that scheduling and providing capital facilities for new development will not degrade adopted service levels. Policies * * * 3B. Service and facility impacts of new de- velopment must be identified and quantified so that sufficient public facilities will be planned and programmed to be available when needed. All development orders authorizing new, or significant expansion of existing urban land uses, shall be contingent upon the provision of services at the Levels of Service (LOS) which meet or exceed the adopted LOS standards. * * * Objective 4 Levels of service standards for those services listed in the CIE will be upgraded and main- tained at adopted levels. Policies 4A. By the date set in Section 163.3202 F.S., Dade County shall formalize requirements that all new development regardless of size which benefits from the provision of public facili- ties and infrastructure will bear an equitable share of the costs of such facilities, make contribution in kind or transfer land, in amounts necessary to accommodate the impact of proposed development. 4B. Appropriate funding mechanisms will be adopted and applied by Dade County in order to assure the fiscal resources to maintain acceptable levels of service. Such funding mechanisms include special tax districts, municipal taxing service units, local option taxes, user fees, local gas taxes, general obligation bonds, impact fees, and special purpose authorities among others. * * * Objective 5 Upon the adoption of this plan development approvals will strictly adhere to all adopted growth management and land development regu- lations and will include specific reference to the means by which public facilities and infrastructure will be provided. Policies 5A. As a priority, previously approved de- velopment will be properly served prior to new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban ser- vices and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service localized needs. This element also includes a five-year schedule of capital improvements. Transmittal of Plan Amendment to the Department On or about April 3, 1990, the County Manager transmitted to the Department Ordinance No. 90-28, along with other documentation, including the written material that the Suchmans had submitted in support of their application, as well as a document prepared by the Planning Department which purported to provide "a synopsis of the information received by the Board of County Commissioners as bases for approving the applications subject to DCA objections." The Planning Department's synopsis stated the following with respect to Applications 39, 40 and 47: Application No. 39 The flight path for training flights around Tamiami-Kendall Airport circle around this application site but do not directly fly over this site. This application represents urban infill rather than leap frog development. Approval of residential use on this site will allow people to live in close proximity to the employment center around the Tamiami-Kendall Airport. Application No. 40 The site will be used for a Traditional Neighborhood Development (TND). A covenant was provided to ensure this. Services are available on sites immediately to the east. The area is not flood prone, or environmen- tally sensitive in any way. Extensive testimony and documentation was received which casts doubt on the accuracy of the Planning Department's estimates and pro- jections of growth in this area. (See enclosed exhibits). This site is nearby the industrial and office employment center which is developing around the Tamiami-Kendall Airport, therefore, urbanization of this site complements and supports the policy of promoting development around activity centers. The extension of the Coral Reef Drive corridor provides an alternative to the Kendall Drive corridor as a location for additional urban development. * * * Application 47 The site is bordered on the east and south by the year 2000 Urban Development Boundary (UDB). It is in the logical path of future urban development. To the south is the urban- izing area of Homestead. Pockets of estate residential homes and zoning exist in the area designated Agricul- ture to the north and west of this site. There are not level of service problems in the area. The area is not flood prone. The specific density of estate residences to be built on this site is not established by approving the CDMP amendment; that will be decided at a future zoning hearing. The transmittal package sent by the County Manager was received by the Department on April 6, 1990. Suchmans' Request to Receive Notice of the Department's Action By letter dated March 30, 1990, David Goldwich, Esquire, counsel for the Suchmans, requested that the Department send him a copy of the "notice of intent to find the CDMP Application No. 40 in compliance or not in compliance with Chapter 163." The Department responded to Goldwich's letter by sending him a letter, dated April 17, 1990, in which it promised to provide him with a copy of the notice of intent when it was issued. The Department's Compliance Determination: Notice and Statement of Intent In reviewing the County's 1990 Plan Amendment, the Department treated each approved application as a separate amendment to the CDMP. Following its review of these approved applications, the Department issued its notice of intent "to find the amendment(s) adopted by Ordinance 90- 28, Amendment Nos. 39, 40 and 47 NOT IN COMPLIANCE and Amendment Nos. 1 to 9, 11 to 16, 19, 22 to 24, 26 to 29, 44 to 46, 49, 51, 53 and 55 to 71 IN COMPLIANCE, pursuant to Sections 163.3184 and 163.3187, F.S." On or about May 15, 1990, the Department sent a copy of the notice of intent to the Miami Herald, along with a letter requesting that the notice be published in the May 21, 1990, edition of the Herald. Through no fault of the Department's, the notice was published in the May 24, 1990, edition of the Herald, instead of the May 21, 1990, edition as the Department had requested. The Department mailed a copy of the notice of intent to the Suchmans' counsel, 32/ although it was never received. By letter dated May 18, 1990, to Mayor Clark, the Department advised the County of its compliance determination. On May 21, 1990, the Department issued a statement of intent in which it explained the bases for its determination that "Amendment Nos. 39, 40 and 47 [were] NOT IN COMPLIANCE." In its statement of intent, the Department alleged that "Amendments 40 and 47 are not supported by an adequate suitability analysis of the vacant land to which they apply, or an adequate analysis documenting the need for the UDB expansion [in violation of] Rules 9J-5.005(2)(a), 9J- 5.006(2)(b) and 9J-5.006(2)(c), F.A.C.;" "Amendments 40 and 47 are inconsistent with other provisions in the plan (including but not limited to Objectives 1, 3 and 7, Policies 1A, 1B, 3D, and 7G and implementing procedures on p. 33 and 34 of the Future Land Use Element) concerning discouraging urban sprawl and prioritizing public facilities within the UDB [in violation of] Rules 9J- 5.005(5)(a), 9J-5.006(3)(b)7. and 9J-5.011(2)(b)3., F.A.C.;" "Amendments 40 and 47 are inconsistent with Objective 7, Policies 7E, H and I, and implementing procedures on p. 34 and 35 of the Future Land Use Element, and other provisions of the plan concerning future expansion of the UDB [in violation of] Rules 9J- 5.005(5)(a) and (b), F.A.C.;" "Amendments" 40 and 47 result in "an internal inconsistency because [they] negate the intended effect [of the settlement agreement between the Department and the County] of allowing roadway degradation in existing urban areas, which is to encourage development and redevelopment in such areas, promote public transportation and discourage urban sprawl" and, consequently, these amendments are in violation of "Rules 9J-5.006(3)(b)7. and 9J-5.011(3)(b)3., F.A.C.;" "[A]mendments 40 and 47 are not supported by data analysis which justifies changing the agricultural land use to industrial or residential land use [in violation of] Rules 9J-5.005(2)(a) and 9J-5.006(2)(c), F.A.C.;" "Amendment" 39 "inappropriately places a residential area within a proposed aviation flight path which is inconsistent with Objective 4 and Policy 4D in the Port and Aviation Element of the Dade Comprehensive Plan [in violation of] Rules 9J-5.005(5)(a) and (b), 9J-5.006(3)(b)3. and 9J- 5.006(3)(c)2., F.A.C.; "Amendments" 40 and 47 cause the CDMP to be inconsistent with Goal (16)(a) and Policies (16)(b)(2) and 18(b)(1) of the State Comprehensive Plan, as well as Policies 57.1.2 and 69.1.1 of the South Florida Regional Policy Plan; and "Amendment" 39 causes the CDMP to be inconsistent with Policy 69.1.1 of the South Florida Regional Policy Plan. Referral to the Division: The Department's Petition and Amended Petition On June 8, 1990, the Department filed a petition with the Division of Administrative Hearings. Appended to the petition were copies of the Department's notice of intent and its statement of intent. The Department alleged in the petition that the "plan amendments" made by the County through the adoption of Ordinance No. 90-28 were: not in compliance because they contain the "inconsistent provisions" described in the Statement of Intent and for the following additional reasons: Amendment 39 is inconsistent with Objec- tives 5, 6 and 7 and Policies 5B, 7C, 7D, and 7I-3 of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (6), F.A.C. Amendment 40 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objectives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D of the plan's Future Land Use Element. On June 19, 1990, the Department filed an amended petition with the Division. That portion of the original petition excerpted above was modified to read as follows in the amended petition: The plan amendments are not in compliance because they contain the "inconsistent provisions" de- scribed in the Statement of Intent and for the following additional reasons: Amendment 40 is inconsistent with Objec- tives 5 and 6, and Policies 5B, 7A, 7B, 7C, and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7C and 7D of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (b). Amendments 40 and 47 are inconsistent with the following provisions of the State Comprehensive Plan: Land Use Goal (16)(a) and Policies (16)(b)1 and 2; Downtown Revitalization Goal (17)(a) and Policy (17)(b)1; Public Facilities Goal (18)(a) and Poli- cies (18)(b)1 and 2; Economy Policies (22)(b) 3 and 12; Agriculture Goal (23)(a). The Objectors' Petition for Leave to Intervene and Rist's Amended Petition On June 26, 1990, the Objectors filed with the Division a joint petition for leave to intervene in this matter. The petition incorporated the allegations that the Department had made in the original petition it had filed with the Division, as well as the recommendations that the Dade County Planning Department had made with respect to Applications 39, 40 and 47. In addition, the Objectors alleged the following in their petition regarding these approved applications: [S]aid amendments 39, 40, and 47 are inconsis- tent with the State Comprehensive Plan, Sec- tion 187.201, F.S., specifically subsections 16a, 16b1, 16b2, 17a, 17b1, 18a, 18b1, 18b2, 20a, 22b3, 22b12, and 23a. Briefly put, the amendments fail, inter alia, to preserve natural resources; fail to maintain and expand agriculture; fail to encourage the separation of rural and urban life; provide for incompatible neighboring uses; promote urban sprawl; waste public and private assets; and fail to aid in a state transpor- tation system. * * * The amendments are not supported by data showing a need for the uses approved [and] thus violate Rule 9J-5.006(2)(c), Florida Administrative Code. On December 10, 1990, at the outset of the final hearing in the instant case, Objector Rist requested permission to file an amended petition which contained the following additional allegations not found in the Objectors' joint petition for leave to intervene: Amendments 40 and 47 do not reflect and are inconsistent with "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" pages I-35 through 39 and not pages 33 through 35 of the Future Land Use Element as erroneously cited in the original petition. It is alleged that amendment 40 and 47 do not reflect and are inconsistent with Policies 3A, 3H, 5A, and 7A of the Future Land Use Element of the Comprehensive Plan. Amendments 39, 40 and 47 do not reflect and are inconsistent with Policy 6C of the Con- servation Element of the Comprehensive Plan. Amendment 39 does not reflect and is incon- sistent with Objective 8 of the Ports and Avia- tion Element of the Comprehensive Plan. Amendments 40 and 47 are inconsistent with Policy 23(b)2 of the State Comprehensive Plan. Miscellaneous Findings: The State Comprehensive Plan The State Comprehensive Plan addresses issues of statewide importance. The following are among the more than 300 individual goals and policies which comprise the State Comprehensive Plan: LAND USE.- Goal.- In recognition of the importance of preserving the natural resources and enhanc- ing the quality of life of the state, develop- ment shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies.- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives, and disin- centives which encourages a separation or urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. * * * DOWNTOWN REVITALIZATION.- Goal.- In recognition of the importance of Florida's developing and redeveloping down- towns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient and environmentally accept- able manner, Florida shall encourage the cen- tralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. Policies.- 1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities. * * * PUBLIC FACILITIES.- Goal.- Florida shall protect the sub- stantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.- Provide incentives for developing land in a way that maximizes the uses of existing pub- lic facilities. Promote rehabilitation and reuse of exis- ting facilities, structures, and buildings as an alternative to new construction. * * * (20) TRANSPORTATION.- (a) Goal.- Florida shall direct future trans- portation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass tran- sit, and other transportation modes. * * * THE ECONOMY.- Goal.- Florida shall promote an economic climate which provides economic stability, max- imizes job opportunities, and increases per capita income for its residents. Policies.- * * * Maintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resour- ces. * * * 12. Encourage the development of a business climate that provides opportunities for the growth and expansion of existing state indus- tries, particularly those industries which are compatible with Florida's environment. * * * AGRICULTURE.- Goal.- Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and re- lated industries in order to be a healthy and competitive force in the national and inter- national marketplace. Policies. Ensure that goals and policies contained in state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. Encourage diversification within the agri- culture industry, especially to reduce the vulnerability of communities that are largely reliant upon agriculture for either income or employment. Miscellaneous Findings: The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Regional Plan for South Florida to guide future development in Broward, Dade and Monroe Counties. The following are among the more than 650 individual goals and policies found in the Regional Plan: Regional Goal: 57.1 New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot economic- ally be provided. Regional Policies: * * * 57.1.2 Give priority to development in areas that are in need of redevelopment and in areas within which adequate support services are either programmed or available Regional Goal: 58.1 Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of land uses on the surrounding environment. Regional Policies: * * * 58.1.7 Encourage the compatibility of adja- cent land uses. * * * Regional Policies: 64.2.1 Land use in and around air- and sea-ports must be strictly controlled to allow future increased operations, to optimize volume, and to prevent unnecessary social or economic conflicts and costs. * * * Regional Goal: The 1990-1995 rate of loss of agricul- tural land to urban uses should be reduced by 10 percent from the 1980-1985 rate. Regional Policies: Encourage activities that maintain an economic/regulatory climate to ensure the con- tinued viability of agricultural interests when those interests are balanced against other concerns. The Regional Plan contains the following "background" information regarding the goal and policies pertaining to agriculture: Agriculture is one of Florida's most important industries. Traditional agriculture (citrus, vegetables and melons, livestock, poultry, greenhouse and nursery, field and other crops) contributed 27 billion dollars to Florida's economy in 1984. The agricultural vitality of South Florida stems from its climate which allows crops to be grown throughout the year, and the production of unique crops such as mangoes. In 1980, 126,785 acres of land, 4.7 percent of the total area in South Florida, was in cropland, pasture and range land, and forest land. This represents 0.5 percent of all such land in the State. Agricultural land is rapidly being lost. . . . When compared to Broward County, Dade County generates a significantly larger share of the economic activity due to agriculture in the Region. 33/ Current 1986 figures show 85,000 acres in agriculture, producing a large variety of crops. These include: tomatoes, snap beans, Irish potatoes, squash, tropical vegetables, sweet corn and fruits such as limes, mangoes and avocados. The markets for these fruits and vegetables are mainly in New York, Philadelphia, Boston, Atlanta, and Canada. Dade County is the largest producer of toma- toes, snap beans, and squash, of any county in the State of Florida. Over 90 percent of limes and mangoes produced in the United States are grown in Dade County. Dade County has the largest ornamental nursery industry of any county in the State of Florida. The main reason for Dade's success in agriculture is South Florida's climate. Vegetables are pro- duced in mid-winter when no other areas in the U.S. are producing. These crops provide fresh produce for the country's markets. It is significant to note that Dade County ranks last in the State for average farm size (59 acres) but is fifth in the State for market value of agricultural products. Agriculture is profitable on a per acre basis because the climate allows for double cropping. . . . In 1983, the agricultural industry produced less than 1 percent of total earnings in the South Florida region. The importance of this sector cannot be measured in dollar terms alone. The general public tends to view agriculture as a transitional land use. The benefits of maintaining the agricultural economy, however, are significant. Agricultural land can provide open space between areas with urban uses, it can serve as a watershed where water is collec- ted and later used in a farm or non-farm use, it can provide a habitat for wildlife, and it can provide unique beauty. New technology and agricultural practices are also providing new opportunities for disposing of sewage sludge on agricultural lands, benefitting both the rural and urban sectors. . . . Agricultural research activities have already yielded many benefits to South Florida agri- culture. Progress has been made in developing: more efficient irrigation systems, integrated pest management, improved strains of crops in production, as well as new crops to put into production. The findings of agricultural research can continue to improve the conser- vation, production, and marketing techniques available to South Florida farmers. South Florida farmers are experiencing many of the same problems that farmers in other high growth areas are facing. 34/ Land in South Florida that is suitable for agricul- tural use is also highly suitable for urban uses. Given the geographic configuration of the Florida Peninsula agricultural areas are never far removed from urban areas. Urban growth and the pressures of suburbanization are constantly felt by the Region's farmers. 35/ Many problems arise when agricultural and urban land uses interface. Non-farm residents complain because of farm noise, smells, and such practices as fertilizer and pesticide spraying. Nuisance suits and ordinances that prohibit certain farm practices create pressures that reduce the profitability and desirability to farm. 36/ Farm land conversion to urban uses is a serious problem in our Region. 37/ Analysis of prop- erty appraiser data shows the reduction in net agricultural acreage between 1980-1985 to be 18 percent for the Region. This figure applies mainly to agricultural land in Broward County. According to the Dade County Cooperative Exten- sion Service, net agricultural acreage has re- mained stable for the past 20 years. 38/ This is because land rezoned for urban uses has been replaced by other lands converted for agricul- tural use. This represents another problem. As agricultural land is converted to urban uses, agriculture may be pushed into wetlands, wild- life habitats, and other fragile ecosystems. Miscellaneous Findings: Urban Sprawl In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements." The memorandum defines "urban sprawl" as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density, single-dimensional development." These land use patterns are described in the memorandum as follows: Leapfrog development occurs when new develop- ment is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appro- priate for urban development. * * * Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant com- munities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources. Strip or ribbon development involves the loca- tion of high amounts of commercial, retail, office and often multi-family residential de- velopment in a linear pattern along both sides of major arterial roadways. * * * Low-density, single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive devel- opment pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources. The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners. Indicators of sprawl mentioned in the memorandum include the following: The amount of residential land and densities depicted on the future land use map signifi- cantly exceed the projected need for residen- tial land use by type during the planning period. In discussing this indicator, the memorandum advised that "[a]ny plan in which the amount of land designated to receive development totals more than 125 percent of the amount needed to accommodate projected need will be closely scrutinized by the DCA." In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it may be necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities Density per square mile: Classification 0-200 Rural 201-500 Exurban 501-1000 Suburban 1001-2000 Medium [Urban] Density 2001-5000 High [Urban] Density 5000+ Highest Urban Density Among the specific techniques recommended in the memorandum to curb "urban sprawl" are establishing "urban service areas and urban growth boundaries," "[p]romoting urban infill development and redevelopment," and imposing "mixed-use and clustering requirements." With respect the latter technique, the memorandum states as follows: One of the most important and critical tech- niques for discouraging sprawl is strong mixed use policies which require residential and nonresidential uses to be located in reason- ably close proximity to each other. Such policies should promote an attractive, func- tionally and physically integrated mix of commercial, office, retail, residential (including affordable housing), and recrea- tional land uses. Development designed in this manner can even occur away from existing urban areas and not represent urban sprawl if it consists of a complementary mix of residen- tial and nonresidential land uses at medium to high densities, promotes high levels of inter- nal capture, does not rely on rural arterials for local traffic movements, and encourages pedestrian and bicycle traffic. The tradi- tional neighborhood development district code is an example of how this concept can be implemented.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Administration Commission enter a final order in Case No. 90-3599GM finding that Metropolitan Dade County's 1990 Plan Amendment is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of December, 1991. STUART M. LERNER 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 26th day of December, 1991.
The Issue The issue is whether proposed rules 9J-5.026(3)(d), (7)(b), (7)(c)4. and 6., (8)(a), (9)(a)3., 6., 18., and 19., and 9J- 11.023(2), (4), and (5), and existing Florida Administrative Code Rule 9J-5.003(80) are invalid exercises of delegated legislative authority for the reasons alleged in the Petition for Administrative Hearing to Challenge Proposed Amendments to Chapters 9J-5 and 9J-11, F.A.C. and to Challenge Existing Rule 9J-5.003(80) (Petition).1
Findings Of Fact Based on the evidence presented by the parties, the following findings are made: The Parties Petitioners are not-for-profit organizations whose members own real property throughout the State. A substantial number of their respective members own real property which could be amassed as one or more areas in the RLSA program. Some members of these organizations have taken steps in an effort to have their land designated as an RLSA. On behalf of their respective members, each Petitioner has a substantial interest in public policy relating to land use planning, growth management, and the protection of agricultural, rural, and conservation lands. Respondent, Department of Community Affairs (Department), has stipulated to the facts necessary to establish standing for each Petitioner. The Department is the state agency charged with implementing the review provisions of the Local Government Planning and Land Development Regulation Act codified in Sections 163.3164, et seq., Florida Statutes. The Original Statute Creating the RLSA Program Because of the complexity of the subject matter, a recitation of the RLSA program's history is appropriate. In 2001, the Legislature enacted Chapter 2001-279, Laws of Florida, codified as Section 163.3177(11)(d), Florida Statutes, which created the RLSA pilot program. The law became effective on July 1, 2001, and stated: It is the intent of the Legislature that rural land stewardship areas be used to further the following broad principles of rural sustainability: restoration and maintenance of the economic value of rural land; control of urban sprawl; identification and protection of ecosystems, habitats, and natural resources; promotion of rural economic activity; maintenance of the viability of Florida's agriculture economy; and protection of the character of the rural areas of Florida. § 163.3177(11)(d)2., Fla. Stat. (2001). While the eligibility criteria and substantive requirements of the RLSA program have been amended several times, the foregoing principles have remained the same. The statute provides an option, not an exception, under the State's growth management laws for local governments to implement innovative planning and development strategies for large, rural parcels. While having many of the attributes of a traditional "transfer of development rights" program, the RLSA planning process provides additional planning and economic incentives as well as flexibility for the local government to implement this program. The program was best summarized by Secretary Pelham at hearing as follows: The RLSA process is an optional planning process which local governments may elect to use in rural and agricultural areas of the state. Essentially it provides incentives to landowners to preserve or conserve environmental and natural resources and agricultural lands by giving them stewardship credits that may be assigned to those lands to be preserved, but which can be used on other lands through a transfer of those credits to the receiving areas. Tr. at 182. The first step in the RLSA planning process is for the local government to "apply to the Department in writing requesting consideration for authorization to designate a [RLSA]." § 163.3177(11)(d)3., Fla. Stat. (2001). Under the original statute, if the Department chose to authorize a local government to designate an RLSA, it would do so by written agreement with the local government. See § 163.3177(11)(d)4. and (5), Fla. Stat. (2001). Because the original statute was a pilot program, the Department could authorize only five local governments to designate RLSAs. See § 163.3177(11)(d)6., Fla. Stat. (2001). To be eligible for designation as an RLSA under this pilot program, a parcel of land had to be larger than 50,000 acres but not over 250,000 acres; it had to be designated as rural or a substantial equivalent on the future land use map (FLUM); and it had to be located outside the municipal and established urban growth boundaries. See § 163.3177(11)(d)6., Fla. Stat. (2001). For this reason, only counties (and not cities) were eligible to participate in the program. Once it received Department authorization to designate an RLSA, the county was to then propose and adopt a plan amendment designating the RLSA. See § 163.3177(11)(d)6., Fla. Stat. (2001). This plan amendment was to be subject to full review under Section 163.3184, Florida Statutes, for a compliance determination. Also, the plan amendment was required to specifically address the following: Criteria for the designation of receiving areas within rural land stewardship areas in which innovative planning and development strategies may be applied. Criteria shall at a minimum provide for the following adequacy of suitable land to accommodate development so as to avoid conflict with environmentally sensitive areas, resources, and habitats; compatibility between and transition from higher density uses to lower intensity rural uses; the establishment of receiving area service boundaries which provide for a separation between receiving areas and other land uses within the rural land stewardship area through limitations on the extension of services; and connection of receiving areas with the rest of the rural land stewardship area using rural design and rural road corridors. Goals, objectives, and policies setting forth the innovative planning and development strategies to be applied within rural land stewardship areas pursuant to the provisions of this section. A process for the implementation of innovative planning and development strategies within the rural land stewardship area, including those described in this subsection and s. 9J-5.006(5)(l), Florida Administrative Code, which provide for a functional mix of land uses and which are applied through the adoption by the local government of zoning and land development regulations applicable to the rural land stewardship area. A process which encourages visioning pursuant to s. 163.3167(11) to ensure that innovative planning and development strategies comply with the provisions of this section. The control of sprawl through the use of innovative strategies and creative land use techniques consistent with the provisions of this subsection and rule 9J-5.006(5)(l), Florida Administrative Code. Once the plan amendment was in place, the county was then to implement it through land development regulations. Under the original statute, the county by ordinance was to "assign to the [RLSA] a certain number of credits, to be known as 'transferable rural land use credits' . . . ." These credits would then be transferred to designated receiving areas "solely for the purpose of implementing innovative planning and development strategies and creative land use planning techniques adopted by the local government pursuant to this section." See § 163.3177(11)(d)8.b., Fla. Stat. (2001). Once transferable rural land use credits were transferred from a parcel, the underlying land uses would be extinguished, the parcel would be limited to agriculture or conservation, and the transfer would be memorialized as a restrictive covenant running with the land. See § 163.3177(11)(d)8.k., Fla. Stat. (2001). The Department was granted the authority to implement this section by rule in the original statute. However, the Department did not adopt rules. No county applied to participate in this pilot program. Amendments to the RLSA Statute The Legislature substantially amended the statute in 2004. See Ch. 2004-372, Laws of Fla. Although the program had no participants as of that time, the Legislature removed the pilot status of the program and the limitation on the number of local governments that may be authorized to designate an RLSA. See § 163.3177(11)(d)1., Fla. Stat. (2004). Although the requirement for a written agreement between the county and the Department was deleted, the requirement for the county's application and Department's authorization prior to the designation of an RLSA remained. See § 163.3177(11)(d)1. and 4., Fla. Stat. (2004). The minimum acreage for an RLSA was reduced to 10,000 acres and the maximum was removed. § 163.3177(11)(d)4., Fla. Stat. (2004). The statute also explicitly recognized that RLSAs could be multi-county. § 163.3177(11)(d)2., Fla. Stat. (2004). In 2005, the Legislature again amended the statute in several respects, one of which was directed to the stewardship credit methodology. See Ch. 2005-290, Laws of Fla. However, the statute still requires that the total amount of credits is to be tied to the "25-year or greater projected population of the rural land stewardship area." Although the statute was amended again in 2006, those amendments have no bearing on the issues in this case. See Ch. 2006-220, Laws of Fla. Designating an RLSA Under the Statute Collier County has been frequently mentioned as a local government with an RLSA program. However, that County's comprehensive plan provisions regarding rural development were not adopted under the RLSA statute; rather, they were adopted by the County in 1999 as conventional plan amendments that were later approved in 2002 by a final order issued by the Administration Commission. Collier County's rural planning program does, however, have some of the same core attributes found in the RLSA program, including the creation of transferable land use credits to enable development in designated receiving areas. The Department closely examined the Collier County program as part of its "Rural Land Stewardship Area Program 2007 Annual Report to the Legislature" (2007 Annual Report). See Joint Exhibit 4. See also § 163.3177(11)(d)8., Fla. Stat. ("[t]he department shall report to the Legislature on an annual basis on the results of implementation of [RLSAs] authorized by the department"). This examination revealed several substantial flaws in the program. First, the Collier County program is extremely complex, with over twenty general attributes that must be examined for every acre of land assigned stewardship credits. This would make it difficult and expensive for small rural counties with limited resources. The Collier County program also assigns the highest stewardship credits to environmentally sensitive lands and appreciably lower values to agricultural land. The result is that development is directed to agricultural areas. For example, eighty-seven percent of the footprint of one receiving area that is currently being developed, known as Ave Maria, was in active agriculture prior to its designation for development. In this respect, the Collier County system is directing development to agricultural lands and not protecting and conserving those lands, which the Department contends contravenes the principles of rural sustainability. Another major concern with the Collier County program is the extent and distribution of receiving areas. The Collier County program does not have any requirements that the receiving area be clustered, thus allowing for the possibility of scattered, sprawling receiving areas throughout eastern Collier County. Also, there appears to be no limit on the footprint of these receiving areas. The original Collier County program envisioned development on only nine to ten percent of the entire area, for a total of approximately 16,800 acres. However, due to the complexity and "flexibility" within the Collier County stewardship credit system, "the maximum development footprint cannot be determined." On September 12, 2006, St. Lucie County adopted plan amendments under the RLSA statute. Later that year, the Department reviewed the amendments and found them to be in compliance. In preparing the 2007 Annual Report, the Department undertook a detailed analysis of the St. Lucie RLSA amendments. Even though the amendments had been previously found to be in compliance, the new analysis revealed several shortcomings in the amendments, including their failure to discuss, analyze, or demonstrate how they further the principles of rural sustainability, a primary focus of the program. Also, the amendments were not supported by an analysis of land use need. Instead of projecting population and need, the RLSA adopted an arbitrary cap of 13,248 dwelling units with "no known planning basis." The St. Lucie RLSA is similar to the Collier County program in two respects: it is very complex, and it places no spacial limits on the footprint of the development area. Due to these shortcomings, the Department has placed little, if any, reliance on the St. Lucie County RLSA amendments as an example of proper planning under the RLSA statute. There is no evidence that any development has occurred under the St. Lucie program, and its most recent Evaluation and Appraisal Report dated October 2008 indicated that none may ever occur. In 2007, Highlands and Osceola Counties both applied for and were granted authorization by the Department to designate RLSAs. However, both counties later notified the Department that they would no longer pursue the RLSAs, and the authorizations were withdrawn by the Department. The Rule Development Process In early 2007, the Department became aware of assertions by some landowners that the RLSA program provides for unlimited development within a stewardship area; that RLSA plan amendments were not subject to the growth management provisions in Chapter 163, Florida Statutes; and that RLSAs were not subject to a needs analysis, as required by the law. At the same time, the Department received numerous inquiries from large landowners and/or their representatives regarding RLSA proposals, some as large as 750,000 acres, and for two "new towns" with 100,000 and 60,000 dwelling units, respectively. It also became aware of concerns and criticisms leveled against the one adopted RLSA program in St. Lucie County and rural planning efforts in Collier County. The main criticism was that the system being used for RLSA planning was too complex, which resulted in an expensive, consultant- intensive process that lacked transparency and was largely incomprehensible. Based on the above concerns and criticisms, the Department began gathering information in early 2007 in preparation for rulemaking. On July 19, 2007, it conducted its first workshop. Two other workshops were held, and the first draft of proposed rule 9J-5.026 was issued in January 2008. That proposed rule set forth the minimum substantive requirements for RLSA planning. In September 2008, the Department issued its first draft of proposed rule 9J-11.023, which sets forth the procedural requirements for a local government to seek authorization from the Department to designate an RLSA. After receiving comments from interested parties, the Department noticed the rules for adoption and conducted a rule adoption hearing. On January 7, 2009, Petitioners filed a Petition challenging most of the provisions in the proposed rules. See DOAH Case No. 09-0048RP. Based upon that challenge, which raised new issues not previously brought to the attention of the Department, the Department withdrew the rules and made substantial revisions to address these concerns. This rendered moot Petitioners' earlier challenge. After the revised rules were noticed for adoption, Petitioners filed their Petition challenging numerous provisions within the proposed rules as well as one existing rule. The Objections As summarized in their Proposed Final Order, Petitioners contend (a) that proposed rules 9J-11.023(2), (4), and (5) are invalid because they exceed the Department's grant of rulemaking authority;4 (b) that proposed rules 9J-5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and 19. enlarge, modify, or contravene the specific provisions of law implemented; (c) that proposed rule 9J-5.026(3) is vague and fails to establish adequate standards for agency decisions; (d) that proposed rule 9J-5.026(9)(a)18. is arbitrary; and (e) that existing Rule 9J-5.003(80) contravenes the specific provisions of law implemented. The remaining allegations have been voluntarily dismissed. a. Does proposed rule 9J-11.023 exceed the grant of legislative authority? Petitioners first contend that subsections (2) and (4) in their entirety and the words "If authorized to proceed" in the first sentence of subsection (5) of proposed rule 9J-11.023 are an invalid exercise of delegated legislative authority because they exceed the Department's specific grant of legislative authority. The challenged subsections of the proposed rule read as follows: 9J-11.023 Procedure for the Designation of a Rural Land Stewardship Area. * * * (2) Pre-Notification Actions. Prior to giving official notification of intent to designate a RLSA to the Department, the county(ies) shall conduct at least one noticed public workshop to discuss and evaluate the appropriateness of establishing a RLSA. The county(ies) shall invite the Department of Community Affairs, Department of Agricultural and Consumer Affairs, Department of Environmental Protection, Department of Transportation, Florida Fish and Wildlife Conservation Commission, affected regional planning council(s), and affected water management district(s) (collectively referred to as the "RLSA Interagency Technical Advisory Team") to participate in the workshop. Potentially affected landowners and other interested parties shall be given notice and invited to participate in the workshop. The workshop shall address: the statutory process for designating a RLSA; the planning issues that are likely to arise; and the technical assistance that will be available from state and regional agencies if the county(ies) proceed to designate a RLSA. The county(ies) shall provide opportunities for broad public participation in the RLSA process, which may include a series of public meetings or workshops. The county(ies), in coordination with the affected landowners, shall host a site visit of the RLSA for the RLSA Interagency Technical Advisory Team in conjunction with the workshop or after the notification of intent to designate pursuant to paragraph (4)(b). * * * Review of Notification of Intent to Designate. The Department will provide members of the RLSA Interagency Technical Advisory Team with a copy of the notification of intent to designate within five days after receipt of the notification. If a site visit was not made prior to the notification of intent to designate, the Department will contact the county(ies) within ten days after receipt of the notification of intent to arrange a site visit of the proposed RLSA and surrounding lands. The county(ies) shall ensure proper coordination with the affected landowners. The Department will coordinate the scheduling of the site visit with the members of the RLSA Interagency Technical Advisory Team and request their participation in the site visit. Members of the RLSA Interagency Technical Advisory Team shall be asked to provide the Department oral and/or written comments on the proposed RLSA within 30 days of the receipt of the notification of intent to designate or the site visit, if it occurs after the notification. The Department may also request meetings with the members of the RLSA Interagency Technical Advisory Team to discuss and evaluate the notification and site visit. The Department may also request a conference with the county's(ies') staff(s) to discuss issues and questions that have arisen as a result of the site visit, comments from members of the Interagency Technical Advisory Team and other stakeholders, and the Department's evaluation of the RLSA proposal. Not later than 60 days following the receipt of the notification of intent to designate or the site visit, whichever is later, the Department shall issue a written notification to the county(ies). The Department's notification shall authorize the county(ies) to proceed with a plan amendment to designate the RLSA or inform the county(ies) of the Department's decision not to authorize. The decision shall be based on the information contained in or gained from the notification, site visit, other agency comments, and other information received. The Department shall authorize the county(ies) to proceed if it determines that the proposed RLSA meets the threshold eligibility requirements of subsection 9J-5.026(4), F.A.C. and that there is a reasonable likelihood that the RLSA will further the principles of rural sustainability. If the Department decides to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the notification will set forth the facts on which the authorization is based, and may include recommendations to the county(ies) regarding the RLSA. The notification will not guarantee that a comprehensive plan amendment(s) to designate a RLSA will be found in compliance by the Department. It will only constitute the Department's authorization to designate a RLSA if the necessary comprehensive plan amendment(s) are adopted and found in compliance pursuant to Section 163.3184, F.S. If the Department decides not to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the agency's notification will explain the reasons for the decision. Amendment to the Comprehensive Plan: If authorized to proceed, the county(ies) may prepare and process a plan amendment(s) that will be reviewed by the Department pursuant to Section 163.3184, F.S. The county(ies) may, in preparing the plan amendment(s), establish a local visioning process to facilitate the development of a RLSA plan amendment. The Department encourages the county(ies) to seek and utilize technical assistance from the members of the RLSA Interagency Technical Advisory Team in preparing a RLSA plan amendment. 33. Sections 120.52(8)(b) and 120.54(3)(a)1., Florida Statutes, require that the agency list in the rulemaking notice the purported rulemaking authority for the proposed rule. To comply with this requirement, the Department's rulemaking notice cites Sections 163.3177(9) and (11)(h), Florida Statutes, as the specific authority for adopting the rule and Section 163.3177(11)(d)1., Florida Statutes, as the law being implemented. In its Proposed Final Order, the Department relies on Section 163.3177(11)(h) as the specific statutory authority for rulemaking. It provides that the Department "may adopt rules necessary to implement the provisions of [subsection 163.3177(11)]," including the RLSA provisions found in Section 163.3177(11)(d). On the other hand, the law being implemented is quite lengthy and reads as follows: (11)(d)1. The department, in cooperation with the Department of Agriculture and Consumer Services, the Department of Environmental Protection, water management districts, and regional planning councils, shall provide assistance to local governments in the implementation of this paragraph and rule 9J-5.006(5)(l), Florida Administrative Code. Implementation of those provisions shall include a process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element as predominately agriculture, rural, open, open-rural, or a substantively equivalent land use, as a rural land stewardship area within which planning and economic incentives are applied to encourage the implementation of innovative and flexible planning techniques, including those contained herein and in rule 9J- 5.006(5)(l), Florida Administrative Code. Assistance may include, but is not limited to: Assistance from the Department of Environmental Protection and water management districts in creating the geographic information systems land cover database and aerial photogrammetry needed to prepare for a [RLSA]; Support for local government implementation of rural land stewardship concepts by providing information and assistance to local governments regarding land acquisition and assistance to local governments regarding land acquisition programs that may be used by the local government programs that may be used by the local government or landowners to leverage the protection of greater acreage and maximize the effectiveness of rural land stewardship areas; and Expansion of the role of the Department of Community Affairs as a resource agency to facilitate establishment of [RLSAs] in smaller rural counties that do not have the staff or planning budgets to create a [RLSA]. Proposed rule 9J-11.023 describes in detail the process by which a local government is to request Department authorization to designate a RLSA. At issue here are provisions in subsections (2), (4), and (5) of the rule that require a local government wishing to designate an RLSA to conduct a public workshop; cover particular topics during the workshop; host a site visit with designated agencies; and based on the information gathered from this process to then allow the Department, in its discretion, to either authorize or not authorize the local government to begin to prepare and process an RLSA amendment. The latter decision is based on whether the local government has shown "a reasonable likelihood that the RLSA will further the principles of rural sustainability." Petitioners contend that there is no specific grant of rulemaking authority that authorizes the Department to mandate these procedures in the rule or to prevent a local government from proposing and processing an RLSA plan amendment. Instead, they contend that the enabling statute only allows the Department to promulgate rules that are "necessary" to implement the RLSA program, those being a requirement that the county provide notice to the Department that it intends to propose a RLSA plan amendment and a description of the subsequent review process by the Department to determine whether the amendment is in compliance. Section 163.3177(11)(d)1., Florida Statutes, authorizes the Department to provide "assistance to local governments in the implementation of this paragraph and rule 9J- 5.006(5)(l)." (The cited rule, among other things, encourages "innovative and flexible planning and development strategies" that allow conversion of rural and agricultural lands to other uses.) The statute also includes specific authority to establish a "process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element (FLUE] as predominately agricultural, rural, open, open-rural, or a substantively equivalent land use, as a [RLSA] . . . ." The rule accomplishes this purpose by requiring state agency technical assistance, establishing the process for a workshop and site visit, requiring that the county's notification describe the basis for the designation, requiring broad public participation, and assuring, by approval or disapproval of the county's preliminary proposal, that the proposed RLSA will promote the principles of rural sustainability. Notably, had the Legislature intended this authorization process to be the same as the existing compliance review process for conventional plan amendments, there would be no need for this statutory language. The proposed rule does not exceed the Department's grant of rulemaking authority. b. Do certain provisions within proposed rule 9J-5.026(7) and (9) enlarge, modify, or contravene the law implemented? Petitioners further contend that proposed rules 9J- 5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and enlarge, modify, or contravene the specific provisions of law implemented. The challenged rules read as follows: 9J-5.026 Rural Land Stewardship Area (RLSA) * * * Data and Analysis Requirements. * * * Population Projections and Analysis of Land Use Need. Population projections and analysis of land use need shall be prepared in accordance with Rule 9J-5.006, F.A.C., with the following modifications: The amount and extent of allowable development in the RLSA must be based on the 25-year or greater projected population of the RLSA; the anticipated effect of the proposed RLSA must receiving areas, including any committed catalyst projects, infrastructure improvements, or other projects that would attract and support development; the furtherance of the statutory principles of rural sustainability; and the goals, objectives, and policies of the RLSA plan amendment. * * * 4. Land development and other conversion threats whereby rural resources under threat require more incentives via stewardship credits and less threatened resources require lesser incentives. This includes the future threat of low-density sprawl on lands within and surrounding Eligible Receiving Areas; and * * * 6. Values shall be assigned to all of the land in the RLSA. The highest values shall be assigned to the most environmentally valuable land, and to open space and agricultural land where the retention of such lands is a priority. The assignment of values shall be submitted with the RLSA plan amendment as part of the supporting data and analysis. * * * Stewardship Credit System Criteria. (a) Each credit shall represent a defined number of residential units or a defined amount of non-residential square footage. The credit transferee may decide whether to use the credit for a residential or non- residential use in accordance with the land use standards established for the Designated Receiving Area. * * * Goals, Objectives, Policies, and Map. * * * (a) The goals, objectives, and policies shall include the following: * * * 3. Identification of the innovative planning and development strategies to be used within the RLSA, and a process for implementing the strategies, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. The process shall include provision for the Department's review of a proposed land development regulation to designate a receiving area for consistency with the RLSA plan amendment. * * * 6. A requirement that Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values based on the land values analysis conducted pursuant to paragraph (7)(c). * * * Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RLSA. Provisions to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability. * * * The grant of authority for this rule is cited as Sections 163.3177(9) and (11)(h), Florida Statutes, while Sections 163.3177(2), (3), (6)(a), (8), (10)(e), (11)(a), (b), and (d)1., 2., 4., 5., and 6., Florida Statutes, are cited as the laws being implemented. Subsection (2) of the law being implemented provides that "[c]oordination of the several elements of the local comprehensive plan shall be a major objective of the planning process"; subsection (3) is a lengthy provision requiring that a comprehensive plan include a capital improvements element; paragraph (6)(a) describes in detail the matters that must be contained in the FLUE; subsection (8) requires that all elements of the comprehensive plan be based on data appropriate to the element involved; paragraph (10)(e) generally provides that support data and analysis shall not be subject to the compliance review process, but they must be based on appropriate data; paragraph (11)(a) describes the Legislature's recognition of using innovative planning and development strategies; paragraph (11)(b) expresses the intent of the Legislature to allow the conversion of rural lands to other uses, where appropriate, including urban villages, new towns, satellite communities, area-based allocations, clustering, and open space provisions, mixed-use development, and sector planning; and subparagraphs (11)(d)1., 2., 4., 5., and 6. describe the statutory process for creating an RLSA. Subsection (7) of the proposed rule sets forth the data and analysis requirements that apply to all RLSA plan amendments, including data and analysis of existing conditions (subparagraphs (7)(a)1. through 10.); population projections and analysis of land use (paragraph (7)(b)); and a land values analysis (subparagraphs (7)(c)1. through 6.). A land use needs analysis is an integral part of the planning process. Paragraph (7)(b) requires that an RLSA amendment be supported by population projections and an analysis of land use need such that the amount and extent of allowable development must be based on the 25-year or greater projected population of the RLSA, other items, and the anticipated effect of proposed RLSA receiving areas. Petitioners contend that this language contravenes Section 163.3177(11)(d)6., Florida Statutes, amended in 2005, which provides in part that the total amount of development "must enable the realization of the long- term vision and goals for the 25-year or greater projected population of the [RLSA], which may take into consideration the anticipated effect of the proposed receiving areas." See Ch. 2005-290, Laws of Fla. Paragraph (7)(b) does not contravene the terms of the statute. As expressed in the law being implemented, the rule directs that the need analysis shall be based upon, among other things, "the anticipated effect of the proposed RLSA receiving areas " As a part of the data and analysis to be supplied, paragraph (7)(c) requires that an RLSA amendment be supported by a land values analysis that considers six components described in subparagraphs 1. through 6. This in turn requires a comprehensive analysis of rural resources that exist within the RLSA. Subparagraph 4. requires that the analysis include the development threats to rural resources and that resources under threat of conversion receive more incentives from stewardship credits than resources under less of a threat. Petitioners contend that the rule contravenes Section 163.3177(11)(d)6.j., Florida Statutes, because it requires a greater value to be assigned to resources under threat of conversion and would result in other rural and natural and agricultural resources which may have a higher intrinsic value being assigned fewer credits. Specifically, the cited statute requires that "the highest number of credits per acre" should be "assigned to the most environmentally valuable land, or, in locations where the retention of open space and agricultural land is a priority, to such lands." The purpose of the rule is straightforward: to protect those resources that are under the greatest threat and those that are most susceptible to harm over time through land development or other changes, including urban sprawl. Contrary to Petitioners' assertion, the overall analysis does in fact consider all forms of rural resources in determining how the credits will be assigned. The rule implements the statutory directive of attaining the principles of rural sustainability. Subparagraph (7)(c)6. requires, among other things, that the local government submit as a part of the data and analysis supporting the plan amendment "the assignment of values" of all lands in the RLSA. Petitioners contend that assigning values at the time of the amendment "locks in these values" and would require a subsequent plan amendment in contravention of Section 163.3177(11)(d)6., Florida Statutes, which Petitioners argue contemplates the creation of credits after the adoption of the plan amendment. At hearing, however, the Department explained that because conditions will obviously change over time, the land values analysis will be periodically updated and can be changed without a new plan amendment. In their Proposed Final Order, Petitioners concede that given this interpretation of the rule, it "would not be an invalid exercise of delegated legislative authority." See Petitioners' Proposed Final Order, par. 73. Paragraph (8)(a) of the proposed rule requires each stewardship credit to represent either a defined number of residential units or non-residential square footage. Once the credits are created in sending areas, they can be transferred to designated receiving areas to be used to enable development that is consistent with the RLSA goals, objectives, and policies. Petitioners contend that the rule will prohibit mixed-use development in contravention of Section 163.3177(11)(d)4.c., Florida Statutes, which requires that the RLSA goals, policies, and objective provide for a "functional mix of land uses." There is no prohibition of a mix of land uses. In fact, the opposite is true. As clarified by a Department witness, "a mix is essentially required, as you can see from [sub]paragraph (9)(a)17., which describes that a mix of use must be addressed." Tr. at 273. The rule does not contravene the statute. Subsection (9) of the proposed rule generally requires that the RLSA plan amendment contain goals, objectives, policies, and a map. Subparagraphs (9)(a)1. through 21. require that the goals, objectives, and policies identify the innovative planning and development strategies to be used in the RLSA process, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. Petitioners allege that subparagraphs 3., 6., 18., and enlarge, modify, or contravene the law implemented. Subparagraph 3. requires "implementing plan amendments" because the Department recognized the fact that the RLSA planning process will consume years or even decades and will require implementing plan amendments to accomplish its purpose. This is especially true here as the RLSA process involves the development of large tracts of land (as much as 100,000 acres or more) that will take years or decades to fully implement and build out. At a minimum, under current law, the "implementing plan amendments" will include a capital improvements element annual update; water supply planning, and the designation of new towns. Except for the requirement that an implementing plan amendment designate a new town pursuant to existing Rule 9J-5.003(80), Petitioners agree that the proposed rule is valid. Because the cited existing rule has been determined to be valid, Petitioners' contention is rejected. See Findings 62-65, infra. Subparagraph 6. provides that the goals, policies, and objectives shall contain "a requirement that the Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values on the land values analysis conducted pursuant to paragraph (7)(c)." Petitioners contend that this provision limits the flexibility of local governments to determine the best location for Eligible Receiving Areas and therefore contravenes the provisions in various parts of Section 163.3177, Florida Statutes, that emphasize flexibility. The rule implements the principles of rural sustainability contained in Section 163.3177(11)(d)2., Florida Statutes. Only by directing development to land with the lowest environmental, agricultural, and rural resource value will an RLSA protect ecosystems, habitat, natural resources, and the agricultural economy. The rule does not contravene this statute. Subparagraph 18. requires an RLSA plan amendment to include policies for "new towns," including a requirement that a new town be designated on the FLUM. Petitioners contend that the requirement to designate a new town on the FLUM contravenes Section 163.3177(11)(4)(d)4., Florida Statutes, which provides for the implementation of the innovative planning and development strategies included in existing Rule 9J-5.006(5)(l) through zoning and land development regulations. At hearing, Petitioners narrowed their argument to this one feature in the rule. Because the Department may lawfully require that new towns be designated on the FLUM, subparagraph 18. is consistent with the statute implemented. See Findings 62-65, infra. Subparagraph 19. requires that RLSA plan amendments contain goals, objectives, and policies "to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability." Petitioners contend this provision contravenes Section 163.3177(11)(d)6., Florida Statutes, because it "impinges on existing land use rights which is contrary to one of the statutory principles of rural sustainability, namely the 'restoration and maintenance of the economic value associated with rural lands.'" The rule, however, furthers the principles of rural sustainability, as required by Section 163.3177(11)(d)1., Florida Statutes, since it requires that all lands within an RLSA, whether or not in a Designated Receiving Area, be developed in a manner that furthers those principles. It does not contravene the cited statute. Petitioners also contend that subparagraph 19. contravenes Section 163.3161(9), Florida Statutes, which requires, among other things, that all programs be applied "with sensitivity for private property rights and not be unduly restrictive." Petitioners surmise that the rule may operate to displace underlying density within the RSLA regardless of the use of the RLSA credit system. However, the rule does not displace any underlying density; it only requires that underlying rights be exercised consistent with the RLSA. More specifically, existing densities may be used in any manner that furthers the principles without displacing any of those densities. The rule does not contravene either statute. Is proposed rule 9J-5.026(3) vague and does it have inadequate standards for agency decisions? Petitioners next contend that subsection (3) of proposed rule 9J-5.026, and specifically certain words within the definition of the term "greenbelt," are vague and fail to establish adequate standards for agency decisions. That provision reads as follows: 9J-5.026 Rural Land Stewardship Area (RSLA) * * * (3) Definitions * * * (d) "Greenbelt" means a border of permanently undeveloped land sufficient in size to effectively preclude the expansion of urban development into the surrounding rural lands and to provide an effective buffer to protect the surrounding rural resources from development impacts. A greenbelt is an undeveloped area that surrounds an urban area, a new town, or other urban development and is meant to separate the urban developed area from the surrounding area to provide a border that protects surrounding rural lands from urban development. Petitioners contend that the use of the adjectives "sufficient," "effectively," and "effective" to describe the greenbelt buffer are vague and lack standards to guide agency determinations. In common usage, the word "sufficient" means that the greenbelt is sufficient in size to accomplish its purpose of precluding the expansion of urban development into the surrounding rural lands. Similarly, the word "effectively" means that the use or creation of a buffer to protect urban encroachment on rural lands will be accomplished in an effective manner. Likewise, the word "effective" simply means that the greenbelt achieves the purpose of creating a buffer. These phrases are easily understood by persons of ordinary intelligence, particularly when read in context with other provisions of the rule. See, e.g., Cole Vision Corp., et al. v. Dept. of Bus. and Prof. Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997). Petitioners contend, however, that the rule fails to explicitly include the standard that site-specific data would be considered in determining the "sufficiency" of a buffer. However, this level of detail is not needed since site-specific information is typically considered and applied by the local government and Department through the planning process and might include, for example, the nature of the urban area, the potential impacts if the urban area is extended, the nature of the surrounding land, and other similar factors. The rule is not so vague or lacks sufficient standards as to be invalid. Is proposed rule 9J-5.026(9)(a)18. arbitrary? Petitioners further contend that subparagraph (9)(a)18. of proposed rule 9J-5.026 is arbitrary. That rule reads as follows: 18. Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RSLA. As noted earlier, this rule sets forth the requirements for policies in the RLSA plan amendment that are applicable to new towns. Petitioners contend that the rule is arbitrary because it "selectively emphasizes" a new town as only one of several innovative and flexible planning strategies set forth in existing Rule 9J-5.006(5)(l). To be arbitrary, a rule must not be supported by logic or the necessary facts. See § 120.52(8)(e), Fla. Stat. Here, the more persuasive evidence shows that new towns are much larger development types; they are more intense than other development forms; and they will likely generate greater impacts. In an RLSA, they take on even more significance since the planning goal is to further the principles of rural sustainability. Collectively, these factors form a sufficient basis and rationale for giving new towns different treatment than other development forms that are smaller, have fewer uses, are less intense, and are more likely to have lesser impacts. The proposed rule is not arbitrary. e. Does existing Rule 9J-5.003(80) contravene the specific provisions of law implemented? Finally, Petitioners have challenged existing Rule 9J- 5.003(80), which became effective in 1994, on the ground that it contravenes the specific provisions of law implemented. That rule defines the term "new town" as follows: (80) "New town" means a new urban activity center designated on the future land use map and located within a rural area, distinct and geographically separated from existing urban areas and other new towns. A new town is of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban area designation. New towns include basic economic activities; all major land use categories; and a centrally provided full range of public facilities and services. New towns are based on a master development plan. The specific authority for the rule, when adopted, was Section 163.3177(9) and (10), while the law being implemented was identified as Sections 163.3177 and 163.3178, Florida Statutes. Because Section 163.3178 involves coastal management, and a new town would probably not be located in a coastal zone, it has marginal relevance to this proceeding. The Department relies principally on Section 163.3177(6)(a), Florida Statutes, which requires, among other things, that "various categories of land use shall be shown on a land use map or map series."6 The existing definition provides, in part, that a new town will include "all major land use categories, with the possible exception of agricultural and industrial." Because they include numerous land use categories, new towns are by definition a mixed-use land use category. See Fla. Admin. Code 9J-5.006(4)(c). Mixed-use land use categories must be designated on the FLUM. See § 163.3177(6)(a), Fla. Stat.("The future land use plan may designate areas for future planned development use involving combinations of types of uses"). As noted above, a new town is recognized in existing Rule 9J-5.006(5)(l) as an innovative and flexible planning option. Because the Legislature referenced this rule provision with approval four times in the RLSA statute, it must be presumed that the Legislature was expressing approval of the existing definition with the mapping requirement. See §§ 163.3177(11)(d)1. (two separate references); 163.3177(11)(d)4.c.; and 163.3177(11)(d)4.e. The rule does not contravene the statute being implemented.
The Issue The issue is whether the City of Jacksonville's small scale development amendment adopted by Ordinance No. 2003-1070-E on October 27, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Bartram is a limited liability corporation which owns an 8.5-acre tract of land at 5720 Atlantic Boulevard between Bartram Road and St. Paul Avenue in Jacksonville, Florida, or less than a mile east of the Hart Bridge (which crosses into downtown Jacksonville) and around one-quarter mile south of the Arlington River.4 The property is now vacant; from 1939 until 1990, however, a three-story, 125,000 square-foot hospital (with three separate "out buildings") for children operated on the site. The unused buildings remained on the site until they were demolished in 1998. On October 27, 2003, the City approved an application filed by Wal-Mart's counsel (originally on behalf of the property's former owner, the Christopher Forrest Skinner Trust, and then the new owner, Bartram) for a small scale plan amendment. This was formalized through the adoption of Ordinance No. 2003-1070-E, which changed the property's land use designation on the FLUM, a component of the Future Land Use Element (FLUE) in the Plan, from RPI to NC. Both land use categories are commercial classifications. If the amendment is found to be in compliance, Wal-Mart intends to construct a 40,000 square-foot free-standing grocery store with a 7,500 square-foot outparcel for other retail stores. The grocery store will be operated 24 hours per day, 7 days per week. Wal-Mart has also agreed to file a second land use application to change approximately 3.0 acres of the site to Conservation (CSV), which means that portion of the property cannot be developed in the future. Ordinance No. 94-1011-568, enacted in 1994, requires that small scale plan amendments be reviewed with a companion rezoning application. This is to ensure that when examining an application for a small-scale amendment, the City’s determination of "in compliance" is predicated on both the Plan and its Land Development Regulations. Pursuant to that requirement, the City also approved a change in the zoning on the property from Commercial, Residential, Office (CRO) to Planned Unit Development (PUD). Under the PUD, the City has limited development of the site to a 40,000 square-foot grocery store and a 7,500 square-foot outparcel for limited retail uses; imposed a limitation on curb cuts; provided for setback restrictions, building orientation, and design standards; and preserved over 70 trees on the property as well as green space. These limitations and restrictions are more stringent than those set forth in the NC category. The City's rezoning decision (Ordinance No. 2003-1071-E) has been challenged in Circuit Court by one of Petitioners. (While the new zoning and site plan appear to be solidified, the City concedes that it has the authority at a later date to approve modifications to the site plan, or even change the zoning on the property to another category that is allowed under NC.) On November 18, 2003, Petitioners filed their Petition challenging the plan amendment. In their unilateral Prehearing Stipulation,5 Petitioners contend that the amendment is not supported by adequate or professionally acceptable data and analysis, and it is inconsistent with the standards governing "the location and extent of commercial uses," "the current designation of Bartram Road as a local road," and "the protection of established residential neighborhoods." At hearing, counsel for Petitioners further stipulated that the allegations of internal inconsistencies regarding urban sprawl and roadway/traffic capacity (contained in the Petition) were being withdrawn. A request to add affordable housing as an issue was denied as being untimely. The parties have stipulated that Petitioners and Intervenors reside, own property, or own or operate a business within the City and offered comments, recommendations, or objections to the City prior to the adoption of the amendment. Accordingly, these stipulated facts establish that Petitioners and Intervenors are affected persons and have standing to participate in this action. Because the City's action involves a small scale (as opposed to a large scale) development plan amendment, the Department of Community Affairs did not formally review the plan amendment for compliance. See § 163.3187(3)(a), Fla. Stat. The Existing and Proposed Land Use on the Site The City's Plan, which was adopted in 1990, includes five types of commercially denominated land use categories, two of which are RPI and NC. The RPI category (in which category the Bartram property has been assigned since 1990) is a mixed- use category "primarily intended to accommodate office, limited commercial retail and service establishments, institutional and medium density residential uses." Among others, this category also authorizes large institutional uses, office-professional uses, veterinarians, filling stations, off street parking, nursing homes, residential treatment facilities, day care centers, and other institutional uses "when sited in compliance with [the FLUE] and other elements of the 2010 Comprehensive Plan." According to the Plan Category Description in the FLUE (pages 50-51, Respondent's Exhibit 13), "RPI developments are frequently appropriate transitional uses between residential and non-residential areas." While the existing RPI designation on the property allows Commercial Neighborhood zoning, which may include a grocery store like Wal-Mart proposes, because of some uncertainty over this, and its desire to have a PUD on the property, the City has required that Bartram seek a land use change to NC with PUD zoning, which serves to limit the range of allowable uses and imposes other development restrictions. The Plan Category Description in the FLUE (pages 51- 52, Respondent's Exhibit 13) provides that NC designated lands "serve the needs of contiguous neighborhoods"; they "will generally be located within a ten minute drive time of the service population"; they allow uses which "serve the daily needs of contiguous neighborhoods"; and they must not "penetrate into residential neighborhoods." They may include "convenience goods, personal services, veterinarians, filling stations and other low intensity retail and office-professional commercial uses developed in freestanding or shopping center configurations," and "[n]ormally, such centers will be anchored by a food or drug store and will contain four to ten other supporting retail and office uses." Finally, NC sites "should abut a roadway classified as a collector or higher facility on the [City's] adopted functional classification system map." The Property and Surrounding Area As noted above, the property has been vacant since 1990, when an existing hospital was closed; demolition of the buildings was completed some eight years later. On its northern boundary (which measures approximately 400 feet), the property abuts Atlantic Boulevard, an extremely busy, six-lane roadway classified on the City’s Highway Functional Classification Map (Map) as a principal arterial road. The eastern boundary of the property (which runs around 480 feet deep) abuts Bartram Road, a two-laned paved road with an 80-foot right-of way which runs south from Atlantic Boulevard for around one-half mile and then curves east where it meets University Boulevard (a north-south arterial road) a few hundred feet away. When the hearing was conducted in January 2004, or after the amendment was adopted, Bartram Road was still classified as a local road on the City's Map. Whether it is still classified as a local road at this time is not of record.6 On its western side, the property abuts St. Paul Avenue, a local road which dead ends just south of Bartram's property on Heston Road (another local road), while nine single-family lots are located adjacent to the southern boundary of the property (and on the northern side of Heston Road). The property is around one-quarter mile west of a highly developed major intersection at Atlantic and University Boulevards. The property (on both sides of the roadway) lying between the eastern side of Bartram's property and the major intersection is currently classified as Community/General Commercial (CGC), which authorizes a wide range of slightly more intense commercial uses than are authorized in NC. That land use category is "generally developed in nodal patterns and [is intended to] serve large areas of the City." Directly across Bartram Road to the east (and in the southeastern quadrant of Bartram Road and Atlantic Boulevard) is an older shopping center anchored by a 50,000 square-foot Publix grocery store. The shopping center also has a sandwich shop, florist, pizza parlor, and beauty salon, and sits on a tract of land approximately the same size as Bartram's property. That parcel has approximately the same depth as the Bartram property (480 feet), and the rear of the stores come as close as 35 feet to the single-family homes which lie directly behind the shopping center. Since 1887, the St. Paul Episcopal Church has occupied the 5-acre tract of property directly across St. Paul Avenue to the west. Besides the church itself, a library, office building, educational wing, parish fellowship hall, and a small house (all owned by the church) sit on the property. From the church property to the Little Pottsburg Creek, or around a quarter of a mile to the west, a large, single parcel of land fronts on the southern side of Atlantic Boulevard and is classified as RPI. While aerial photographs appear to show that the property west of the church is either undeveloped or largely undeveloped, under its present RPI classification it may be used for commercial, institutional, or medium density residential purposes at some time in the future. The distance from the intersection of Atlantic and University Boulevards to the Little Pottsburg Creek appears to be six-tenths of a mile or so. An apartment complex (the Villa Apartments) sits on the northeastern quadrant of Bartram Road and Atlantic Boulevard on a fairly narrow sliver of land classified as Medium Density which extends north-northwest some 1,200 feet or so to the Arlington River, a tributary of the St. Johns River. Immediately west of the apartment complex along the northern side of Atlantic Boulevard (and across the street beginning at the eastern part of Bartram's property and extending west) the land uses along the roadway include a relatively small CGC parcel containing a dry cleaning establishment and an upholstery shop; an approximate 350 to 400- foot strip of Low Density Residential (LDR) property (which faces more than half of the Bartram site) with two single-family homes located directly on Atlantic Boulevard, as well as two grandfathered non-conforming uses (a plumbing establishment and a coin shop); then an RPI parcel (which faces the western edge of Bartram's property and extends perhaps 150 feet along the road) with a small office development consisting of 8-10 offices; and finally more LDR parcels until the road crosses the Little Pottsburg Creek. Two local roads which dead end on Atlantic Boulevard and provide access into the residential areas north of Atlantic Boulevard are Oak Haven Street, which terminates directly across the street from the Bartram property, and Campbell Street, which terminates in front of the St. Paul Episcopal Church. Except for the limited commercial uses which front on the northern side of Atlantic Boulevard, and the apartment complex which lies in the northeastern quadrant of Atlantic Boulevard and Bartram Road, virtually all of the property directly across the street to the north and west of Bartram's property running 1,200-1,500 feet or so to the Arlington River is made up of an old, established residential neighborhood (known by some as the Oak Haven neighborhood) consisting of single-family homes, some of which (closest to the Arlington River) are on larger multi-acre tracts and have historical significance. Indeed, the oldest home in the City of Jacksonville, built around 1848, is located in this area. The area directly south of the property and to the west of Bartram Road is classified as Low Density Residential and contains single-family homes for perhaps one-half mile or so. As noted above, some of these homes back up to the rear of the Bartram property. The Amendment and Review by Staff Under the process for reviewing small scale amendments, the application is first reviewed by the City's Planning and Development Department for completeness and accuracy. After the staff reviews the data and performs an analysis of the data, the application is assigned an ordinance number. A staff report is then prepared, and the application is set for hearing before the City's Planning Commission (Commission), an advisory board which makes a recommendation on the application. The Commission's decision (which in this case was a recommendation to deny both applications) is then reviewed by the Land Use and Zoning Committee of the City Council, which consists of 7 members (and voted 5-1 in this case to approve the applications), and the matter is finally considered by the full 19-member City Council (which in this case approved the applications by a 13-2 vote, with 4 members abstaining or absent). After the application was filed, among other things, the City staff reviewed various maps, the FLUM, a zoning atlas, other relevant portions of the Plan, and data provided by other governmental agencies. It also made an inspection of the site and other potentially affected properties in the neighborhood. In preparing its report, the staff analyzed the roadway system, the neighborhood character, the site characteristics, the commercial node, compatibility with the Plan and existing uses, and compatibility with the Strategic Regional Policy Plan and State Comprehensive Plan. A more detailed account of the data relied upon by the staff and its analysis of that data is found in Respondent's Exhibit 19. Besides the staff report, there are underlying work papers (not attached to the report) used by the staff to support its findings (Respondent's Exhibit 33). As a part of its review and analyses, the City considered and applied the locational criteria found in the Operative Provisions of the FLUE, which describe the factors to be used in determining appropriate locations for primary use plan categories (such as NC) in plan amendment requests. Those factors include street classification, public facilities and services, land use compatibility, development and redevelopment potential, structural orientation and other site design factors, ownership patterns, and environmental impacts. The analysis included an evaluation by staff of the impact of development based upon the most intensive uses permitted on NC property. Besides the locational criteria, the FLUE contains a number of policies directed at combating the expansion of strip commercial uses that have historically developed along the City's arterial and collector roadways, including Atlantic Boulevard. These are found in FLUE Policies 3.2.2, 3.2.5, 3.2.7, 3.2.8, and 3.2.16. In reviewing the application, the staff considered these policies and concluded that the amendment would be consistent with those provisions. Objections by Petitioners As noted earlier, Petitioners generally contend that the amendment is not supported by adequate data and analyses. They further contend that the amendment is inconsistent with standards governing the location and extent of commercial uses, the current designation of Bartram Road as a local road, and the protection of established residential neighborhoods. While the various papers filed by Petitioners did not identify the specific provisions of the Plan allegedly being violated, they were disclosed through their expert at the final hearing. Petitioners first contend that the City's data and analyses were predicated on the uses and restrictions contained in the PUD rezoning proposal, and not on alternative development scenarios that are possible under the NC land use designation. They also contend that the City failed to develop data and analyses regarding the impact on FLUE Objective 3.1 or FLUE Policies 1.1.19 and 3.1.7. The latter FLUE policy and the cited objective pertain to affordable housing, an issue not timely raised by Petitioners, while the remaining policy requires that FLUM amendments be based on the amount of land required to accommodate anticipated growth and the projected population of the area. The evidence shows that, prior to the adoption of the amendment, the City reviewed appropriate data from a number of different sources, and it evaluated the plan amendment based upon the most intensive uses that could be permitted under the NC land use designation. In every instance where Petitioners' expert testified that there was insufficient data and analyses, the testimony and exhibits credibly countered that testimony. Therefore, it is found that the plan amendment is supported by adequate and acceptable data, and that the data were collected and applied in a professionally acceptable manner. Petitioners' main contention regarding consistency is that the amendment conflicts with FLUE Policies 1.1.8, 3.2.1, and 3.2.5 in several respects. The first policy requires in relevant part: that all new non-residential projects [including commercial projects on NC lands] be developed in either nodal areas, in appropriate commercial infill areas, or as part of mixed or multi-use developments such as Planned Unit Developments (PUDs), . . . Policy 3.2.1 requires that the City promote, through the use of development incentives and other regulatory measures, development of commercial and light/service industrial uses in the form of nodes, centers or parks, while discouraging strip commercial development patterns, in order to limit the number of curb cuts and reduce conflicts in land uses, particularly along collectors and arterials. Finally, Policy 3.2.5 provides that the City shall require neighborhood commercial uses to be located in nodes at the intersections of collector and arterial roads. Prohibit the location of neighborhood commercial uses interior to residential neighborhoods in a manner that will encourage the use of local streets for non-residential traffic. Petitioners first contend that Bartram's property does not lie within a "node," as that term is defined in the Definitions portion of the FLUE, and that by siting the NC land outside of a nodal area, the amendment is encouraging strip development in contravention of all three policies. They also contend that the amendment conflicts with Policy 3.2.5 because the Bartram property is not located at the corner of an arterial or collector road. Finally, they assert that the amendment is at odds with Policy 1.1.8 because the Bartram parcel is not an "appropriate commercial infill location." In resolving these contentions, it is first necessary to determine whether Bartram Road is a collector or a local street. By virtue of its high traffic volume (an Average Daily Traffic count of more than 1,600), the road actually functions as a collector road, that is, it collects traffic from the local roadway network in the neighborhood, two elementary schools, and a church campus (all south of Atlantic Boulevard) and distributes that traffic to both Atlantic and University Boulevards on each end, both of which intersections are signalized. Indeed, one of Petitioners' witnesses described Bartram Road as a heavily-used, cut-through street for persons traveling between Atlantic and University Boulevards. When the amendment was adopted, however, and even as late as the final hearing in January 2004, the road was still classified on the City's Map as a local road. For purposes of making a land use change, the actual classification on the City's Map should be used, rather than basing the decision on a future change on the Map that may or may not occur. Therefore, the property does not lie at the intersection of a collector or arterial roadway. A "node" is defined in the Definitions portion of the FLUE (page 74, Respondent's Exhibit 13) as follows: A focal point within the context of a larger, contiguous area surrounding it. It is an area of concentrated activity that attracts people from outside its boundaries for purposes of interaction within that area. The developed or developable land areas at the confluence of collector or higher classified roadways, which are suitable for medium to high densities and intensities of use for either single, multiple or mixed use developments. Petitioners contend that a fair reading of the definition is that a node (or focal point of concentrated activity) exists only at the intersection of University and Atlantic Boulevards, and does not extend outward to include the vacant Bartram site. In other words, Petitioners contend that the node is limited to the individual parcels at the intersection itself. On the other hand, the City and Intervenors take the position that a commercial node extends from its center (the intersection) outward in a lineal direction along a roadway until it ends at a natural physical boundary; if no physical boundary exists, then the node extends only to the end of the existing development along the roadway. Using this rule of thumb, they argue that the node begins at the intersection of Atlantic and University Boulevards and extends westward, presumably on both sides of the road,7 in a lineal direction along Atlantic Boulevard until it ends at a natural physical boundary, the Little Pottsburg Creek, approximately six-tenths of a mile away. The purpose of a node is, of course, to concentrate commercial uses near an intersection and reduce the potential for strip development along arterial roads, such as Atlantic Boulevard (which now has strip development extending eastward from the intersection for more than a mile to the Regency Square Shopping Mall). All parties agree that the existing development along Atlantic Boulevard west of the intersection up to the Bartram site is strip or ribbon development, as defined in the Plan, that is, development which "is generally characterized by one or two story commercial/office uses that are located immediately adjacent to one another, or in close proximity, extending out in a development pattern, typically along arterial roadways and usually each individual structure has one or more driveway accesses to an arterial." (Respondent's Exhibit 13, page 76.) The more persuasive evidence supports a finding that the node, that is, the area of concentrated commercial activity or the developed or developable lands at the confluence of University and Atlantic Boulevards, logically extends from the intersection westward in a lineal fashion along the southern side of Atlantic Boulevard until the end of the existing development, that is, the Publix shopping center, where virtually all commercial uses on both sides of the roadway end. (On the northern side of the road, the node would terminate just east of the Villa Apartments, where the CGC uses end). This collection of parcels (up to the eastern side of the Bartram site) includes all of the "developed or developable land areas at the confluence of collector or higher classified roadways, which are suitable for medium to high densities and intensities of use for either single, multiple, or mixed use developments." (If the contrary evidence was accepted, that is, the node extends to the Little Pottsburg Creek, the City could arguably change the land use on the property west of the church to a more intensive commercial use, and in doing so encourage more strip development.) Therefore, the Bartram property is not located within a nodal area and is not a developable land area suitable for "medium to high densities and intensities" of use. By changing its classification to NC and encouraging further strip development beyond the node, the amendment conflicts with Policies 1.1.8, 3.2.1, and 3.2.5. "Commercial infill" is defined in the FLUE as "[c]ommercial development of the same type and scale as adjacent commercial uses that is sited between those uses in existing strip commercial areas." (Respondent's Exhibit 13, page 68.) To qualify as commercial infill under this definition, the adjacent commercial uses must be "of the same type and scale" as those being sited on the vacant property. In the staff report, the City describes the property as "a true infill site," since the land on both sides of the parcel is developed, and the Bartram property is now vacant. However, while the Bartram property has a similar type and scale of development on its eastern side (an older Publix grocery store with 4 connected small retail shops), the property on its western side is a church campus and therefore a completely dissimilar use. (In addition, the property on its southern side is single-family residential). Because the surrounding uses are not of the same type and scale as the proposed infill, the change in land use is not an appropriate commercial infill area. Therefore, the amendment conflicts with Policy 1.1.8, which requires that "all non-residential projects be developed in either nodal areas, [or] in appropriate commercial infill areas." In their Amended Proposed Recommended Order, the City and Intervenors contend that the development nonetheless qualifies as "urban infill," which is defined in part at pages 77-78 of the FLUE as "[t]he development of vacant parcels in otherwise built-up areas where public facilities . . . are already in place." While this catch-all definition would appear to authorize the type of infill being proposed by Bartram (as well as virtually any other type of infill since the Bartram site is a vacant parcel in an otherwise built-up area), other FLUE provisions refer to commercial infill and nodal areas as the primary considerations for siting NC property. Finally, the City and Intervenors suggest that the plan amendment provides an appropriate transition from the busy intersection uses to residential neighborhoods, that is, from intense commercial uses to the east and residential uses to the south and west. The change, if approved, will result in two fairly large grocery stores, one in a shopping center configuration, and both with attendant retail stores, sitting side by side, with a church campus immediately to the west, existing residential uses to the south, and primarily residential uses directly to the north. This pattern of development is at odds with Policy 1.1.7, which requires a "[g]radual transition of densities and intensities between land uses in conformance with the [FLUE]." The other contentions of Petitioners have been considered and found to be unpersuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment adopted by the City of Jacksonville in Ordinance No. 2003-1070-E is not in compliance. DONE AND ENTERED this 5th day of March, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2004.
