The Issue The issue in this case is whether the land development regulation adopted by Respondent, Town of Medley (Town), by Ordinance No. C-306 on September 6, 2005, is consistent with the Town's Comprehensive Plan (Plan).
Findings Of Fact Based upon the record presented by the parties, the following undisputed findings of fact are determined: The Town appears on a map to be located in the northern part of Dade County, south of U.S. Highway 27 and east of the Florida Turnpike, and just south of the City of Hialeah Gardens and southwest of the City of Hialeah. Besides a Plan originally adopted in December 1988, and amended from time to time, the Town also has a Code containing its land development regulations. Waste Management owns and operates a landfill in the Town known as the Medley Landfill & Recycling Center located at 9350 Northwest 89th Avenue.4 Because the landfill has been in operation since 1952, or long before the Plan was adopted, the landfill is considered a nonconforming use under Section 62-61 of the Town's Code. On September 6, 2005, the Town adopted Ordinance C- 306 which amended Section 62-61 of the Code to create a new procedure for allowing the expansion of qualifying facilities operating as nonconforming uses. (Except for Section 62-61, which is found in the Town's land development regulations, there are no provisions in the Plan itself relating to nonconforming uses.) Prior to the adoption of the Ordinance, Subsection 62-61(b) provided the following limitation on the expansion of nonconforming uses: (b) The lawful use of land existing at the time of the passage of this chapter, although such use does not conform to the provisions of this chapter may be continued; provided, however, that no such nonconforming use shall be enlarged or increased, nor shall any nonconforming use be extended to occupy a greater area of land than that occupied by such use at the time of the passage of this chapter. Ordinance C-306 amended Subsection 62-61(b) as follows to allow for an exception to the rule against enlargement or expansion of nonconforming uses: (b) The lawful use of land existing at the time of the passage of this chapter, although such use does not conform to the provisions of this chapter, may be continued; provided, however, that no such nonconforming use shall be enlarged or increased except as provided in subsection (d) hereof, nor shall any nonconforming use be extended to occupy a greater area of land than that occupied by such use at the time of the passage of this chapter. To implement the exception against enlargement or expansion of nonconforming uses, the Ordinance further amended Section 62-61 by adding a new Subsection (d) to read as follows: (d) Any nonconforming use which serves as a Public Facility may be enlarged up to fifteen percent of the current building and/or land area of such use after formal approval by the Town Council via resolution according to the Municipal Code of Medley, Florida. Before approving such enlargement or increase the Town Council shall conduct at least two public hearings. The basis for calculation of such enlargement or increase shall exclude buildings and/or land areas not currently operating as a Public facility, though contiguous thereto. The new provision allows any nonconforming use which serves as a Public Facility to be enlarged or increased up to fifteen percent of its current building or land areas after formal approval by the Town Council by resolution. Because the Code did not define the term "Public Facilities," Ordinance C-306 amended Section 62-1 (the definitions portion of the Code) by adding a new Subsection (a), which reads as follows: "Public facilities" means major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, and health systems and facilities. As is evident from a reading of the definition, the term "public facilities" is not limited to solid waste facilities, but it also includes seven other types of public facilities. Gateway is the owner of real property commonly known as Medley Commerce Center, which is located in the Town immediately adjacent to and north of Waste Management's landfill. On October 6, 2005, Gateway filed a Petition with the Town alleging that the Ordinance was not consistent with the Plan in various respects. The Town did not respond to Gateway's Petition within thirty days after receipt of the Petition. Because no response was made by the Town, on November 7, 2005, Gateway filed a Petition with the Department requesting that the Department declare the Ordinance inconsistent with the Town's Comprehensive Plan (Plan). See § 163.3213(3), Fla. Stat. The Petition referred to a Complaint filed in a circuit court case, Town of Medley v. Waste Management Inc. of Florida, Case No. 03-25832 CA 13, as stating the reasons for inconsistency. Although a copy of the Complaint was not attached to its Petition, Gateway later supplied the Department with a copy. After conducting an informal hearing on December 7, 2005, on February 21, 2006, the Department issued its Determination. In general terms, the Determination concluded that the concerns in Gateway's Petition should more appropriately be raised in a circuit court action under a different provision in Chapter 163, Florida Statutes, through a challenge to any development order or approval that authorizes the expansion of a nonconforming public facility. See Determination, paragraph 17. On March 15, 2006, Gateway filed its Request with DOAH contending generally that the Ordinance was inconsistent with the Plan and that the Department had used the wrong legal standard in determining that the Ordinance was consistent with the Plan. The City, which appears on a map to lie directly south of the Town, shares a border with the Town in the area of Waste Management's landfill property. On February 9, 2006, the City filed a Petition with the Town seeking to have the Town declare that the Ordinance was inconsistent with its Plan. The Petition raised the same issues as did Gateway. On March 2, 2006, the Town provided a response to the Petition by asserting that the claim was barred by collateral estoppel due to the Department's Determination issued on February 21, 2006. The City then waived its right to have the Department conduct informal proceedings under Section 163.3213(4), Florida Statutes, and filed a Motion to Intervene and Incorporated Petition with DOAH on April 27, 2006. Although the City sought to intervene in Case No. 06-0918GM, the filing was treated as a new filing under Section 163.3213(5)(a), Florida Statutes, was assigned Case No. 06- 1548GM, and was consolidated with Gateway's case. Except for one additional consistency claim, discussed below, the filing raises the same issues as did Gateway. The purpose of Ordinance C-306, as expressed in Section 2 thereof, is as follows: PURPOSE: The limited increase or enlargement of nonconforming uses allowed by this ordinance is intended to further the goals, objectives and policies of the Town's Comprehensive Plan found in the Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Ground Water Aquifer Recharge Element as well as the Intergovernmental Coordination Element. The Plan's Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Ground Water Aquifer Recharge Element (Element) in the Future Land Use Element (FLUE) identifies as its primary (and only) goal the "[p]rovision of needed public facilities in a manner that protects public and private investments in existing facilities and promotes compact urban growth." (Vol. IV, Record, page 603). Objective 1 of the same Element provides that an aim of the Plan is the "[p]rovision of sanitary sewer, solid waste, drainage and potable water facilities and services to meet existing and projected demands identified in this Plan." Id. Policy 1.2 also indicates that the Town is to "[i]mplement procedures to ensure that adequate facility capacity is available or will be available at the time a new development permit is issued." Id.
Findings Of Fact The Department as the State Land Planning Agency is charged with the responsibility of reviewing the Comprehensive Plans submitted by local governments. Following such review conducted pursuant to Chapter 163, Part II, Florida Statutes, the Department is to determine whether the plan submitted is "in compliance" or "not in compliance" with applicable statutes and rules employed in the review process. McIntosh is a local government which adopted its Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The McIntosh Comprehensive Plan was adopted was received by the Department on July 24, 1992. On September 4, 1992, the Department published Notice of Intent to find the Comprehensive Plan "in compliance" with applicable statutes and rules. McIntosh is a town of approximately 450 acres in size, which had a residential population in 1990 of 411 and was projected to increase population by the year 2000 to 418 people. Single family residential and agricultural land uses are the predominant land uses in the community. Petitioner Harris owns property within the incorporated limits of McIntosh. He owns and operates Sportsman Cove, a business located on Orange Lake. Portions of Orange Lake are found within the corporate limits of McIntosh where Harris conducts his business. Harris owns blocks 35 and 36 and portions of blocks 37, 53 and 54 within the corporate limits. His business involves 49 licensed mobile home sites and a number of "RV" sites located on approximately 4.648 acres along the shore of Orange Lake. He also operates a fish camp there. When the Comprehensive Plan was being prepared Harris submitted written and oral comments, objections and recommendations pertaining to the plan. He is a person affected by the adopted Comprehensive Plan. Colwell owns property in the incorporated limits of McIntosh. She owns and operates the McIntosh Fish Camp which has 8 mobile home sites and 5 "RV" sites along the shore line of Orange Lake within the town limits. Colwell submitted written and oral comments, objections and recommendations during the process of review and adoption of the Comprehensive Plan. Colwell is a person affected by the adopted Comprehensive Plan. The fish camp operations and "RV" sites of Harris and Colwell are classified in the Comprehensive Plan as lakefront commercial. The Stott's own property in the incorporated limits of McIntosh. That ownership includes blocks 1, 2, 13, 14 and 15 constituted of 13.6 acres, a portion of which is located on the shore of Orange Lake. In 1986 part of their property was used as a restaurant for about a year. The Stott's engaged in a bait business for approximately a year beyond that point. In the past prior to the plan adoption, there had been a fish camp located at blocks 1 and 15 with cabins and camper sites. These blocks are located adjacent to Orange Lake and are classified lake front residential in the Comprehensive Plan. At the time of hearing the property was not being operated as a fish camp. In the past lots 2, 13 and 14 had been used by the Stott's for unspecified light industry. The Stotts submitted written and oral comments, objections and recommendations during the plan review and adoption process. The Stotts are persons affected by the adoption of the Comprehensive Plan. The notice that was provided on September 4, 1992 concerning the intent to find the Comprehensive Plan "in compliance" made mention that the adopted plan would be available for public inspection Monday through Friday, with the exception of legal holidays. The location contemplated for inspection was the McIntosh Town Hall, Clerk's Office, at 5975 Avenue G, McIntosh, Florida. A problem arose concerning the opportunity to inspect the adopted Comprehensive Plan. The problem was occasioned by an illness to the Town Clerk. This influenced petitioners' ability to review the adopted plan and to timely submit their challenges to the decision to find the Plan in compliance. Under the circumstances a slight delay in conforming to the 21 day requirement for filing the petitions in challenge to the Comprehensive Plan is acceptable. With some inconvenience to Petitioners, persons other than the Town Clerk offered assistance in making the adopted plan available for inspection. Nonetheless, petitioners were afforded sufficient opportunity to apprise themselves concerning the contents of the adopted plan when considered in the context of their participation in the overall process for adopting the McIntosh Comprehensive Plan. The complications experienced in reviewing the adopted Comprehensive Plan did not compromise the ability of these petitioners to advance their claims in a setting in which other procedural requirements for plan adoption, review and approval have been met. The inconvenience experienced by the petitioners in reviewing the adopted plan do not evidence a quality of prejudice that should form the basis for deciding that the plan is not in compliance with applicable statutes and rules. When the Town Council adopted the plan and established Policy 2.1.4.5 it intended to use the word "abandonment" where the written text found within the adopted plan at Page 2-23 uses the word "suspension." This mistake is evidenced by the minutes of the meeting for adoption where a motion was made to change the word "suspension" to "abandonment." In the course of the hearing the attorney for McIntosh stipulated that this was an error and that the written text would be changed to reflect the proper wording. With that change Policy 2.1.4.5 would read: Provisions in the Land Development Regulations shall discourage the continuance of existing inconsistent land uses within designated land uses. These provisions shall limit the expansion of inconsistent land usage and, upon a 90 days abandonment of the incompatible land use, require reversion to designated land uses. Petitioner Harris is not satisfied that the Figure 2-6, Page 2-11, which is a map of the wetlands within the incorporated town limits, in the Comprehensive Plan, is accurate. He claims that a lobe, which is an RV site on his property known as site 9C is not within the wetlands as shown on that map. He also takes issue with the designation in Figure 2-9, page 2-17, of the future land map which shows this lobe of property as conservation/open space. He perceives this property at site 9C to be uplands. By virtue of his own activities in May 1991 in which he arranged to have a survey performed on his property in the incorporated limits of McIntosh, Harris asserts that site 9C was not found to be wetlands then and is not wetlands now. When McIntosh designated the wetlands in the community through the use of the wetlands map and identified conservation/open space in the future land use map it was acting in accordance with legal requirements incumbent upon it in adopting the Comprehensive Plan. The specific designations of wetlands and conservation/open space areas are based upon appropriate data and analysis. The data was taken from a professionally accepted existing source and was the best available data. The work that was done in preparing the wetland mapping requirements was done by the same consulting firm which Harris had employed in May 1991, that is to say Environmental Service and Permitting, Inc. In preparing the wetlands survey for McIntosh the private consulting firm used ground-truthing, as well as a review of wetland mapping data sources to delineate the wetlands. The data consulted included the U.S.D.A. Soil Conservation Service Soil Survey of Marion County, U.S.G.S. Quadrangle maps for the Town of McIntosh, as well as a review of the McIntosh Land Planning Agency Drainage Map. Although Harris takes issue with the clarity of some of the maps depicting the lobe of property for his site 9C, the adopted plan is acceptable as it describes wetlands and conservation/open space to include his site 9C. Objective 7.1.1 at Page 7.4 establishes wetland setbacks within the town where it states: The Town of McIntosh shall protect the natural drainage features within and adjacent to the Town limits, by the establishment of the wetland setbacks, and compliance with State Water Quality standards, to be a part of the Land Development Regulation. In furtherance of this Objective, Policy 7.1.1.1 is set out at page 7- 4 where it states: Setbacks shall be established from the limit of wetlands landward to buildings, septic tanks and land coverage. The following setbacks shall be a part of the Land Development Regulations. Buildings shall be set back at a minimum of 75 feet. Septic tanks and drain fields shall be set back at a minimum of 200 feet. Impervious areas shall be set back at a minimum of 50 feet. Drainage Retention Areas shall be set back 25 feet. These set backs were arrived at by the Town Council having heard from the petitioners. In the face of remarks by the petitioners made in the adoption process the council reduced the set backs. While no specific data and analysis was offered to support the set backs, they are within limits which would be recommended by the Department to protect the wetlands resources. According to the Department, from a planning viewpoint, the mere existence of wetlands is sufficient to promote protections through the use of set backs. The set backs found within this Comprehensive Plan are appropriate. Moreover, the set backs associated with the protections of wetlands have the additional benefit of protecting Orange Lake, a Class III Outstanding Florida Water Body, entitled to special water quality protection. Protection of that water body is the responsibility of McIntosh in its comprehensive planning, together with other local governments and environmental regulators. Future land use classifications in the Comprehensive Plan are set out at Page 2-14. Property which abuts Lake Orange is classified as lake front residential and lake front commercial. Lake front residential is defined as: [T]his category allows a maximum of 2 units per acre. Dwelling units includes: single family houses and mobile homes. Maximum coverage of 35% and maximum building height of 35 feet. Lake front commercial is defined as: this category allows fish camps, marinas, and recreational vehicle parks. Maximum coverage of 50% and a maximum building height of 35 feet." These classifications and densities protect natural resources to include the wetlands and Orange Lake and are appropriate. Petitioners Harris and Colwell may take advantage of the lake front commercial for their fish camp operations and "RV" sites. Stott is not entitled to take advantage of the lake front commercial classification in that her property did not include a fish camp and recreational vehicle operations at the time the plan was adopted. Petitioners have failed to show to the exclusion of fair debate that the adopted Comprehensive Plan is not "in compliance" with applicable statutes and rules concerning the issues raised in the challenges to the determination to find the Comprehensive Plan "in compliance."
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds the Town of McIntosh Comprehensive Plan to be "in compliance" and dismisses the petitions. DONE and ENTERED this 30th day of March, 1993, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1993. APPENDIX The following discussion is given concerning the proposed facts of the parties: Harris' Facts: This paragraph is not relevant in that it was not alleged in the petition. This paragraph in its various parts concerning available low and moderate income housing and the densities is rejected in its suggestion that the Comprehensive Plan is not acceptable. This paragraph is rejected in its suggestion that the seasonal population for dwelling units affiliated with fish camp operations should cause a reconsideration of the classifications and densities for land use. This paragraph is ejected in its legal conclusion. 5-8 These paragraphs are not relevant in that these issues were not set out in the petition. 9, 10 To the extent that paragraphs 9 and 10 describe concerns about the treatment in the Comprehensive Plan of wetlands and comment critically on wetlands protections, the proposed findings of facts are rejected. Colwell's Facts: The unnumbered facts proposed are subordinate to facts found, with the exception that the changes in Orange Lake described even if true do not persuade that the wetlands protection of Orange Lake contemplated by the Comprehensive Plan is inappropriate. Stott's Facts: 1-2 Paragraphs 1 and 2 are subordinate to facts found. 3-5 Constitute legal argument. 6 It is acknowledged that the Orange Lake is used for fishing. 7-11 To the extent that paragraphs 7 through 11 suggest inappropriate identification and protection of the wetlands through the adopted Comprehensive Plan, the proposed facts are rejected. McIntosh's Facts: A-E, A-C, A-E Are subordinate to facts found with exception that the word "increase" in fact should be "decrease" when describing residential density. Department's Facts: 1, 2 Subordinate to facts found. Subordinate to facts found with exception that the reference to the property being within "unincorporated" limits should read "incorporated" limits. - 6 Subordinate to facts found. Subordinate to facts found with exception to the suggestion that the petitioners had to contact city council members to obtain a copy of the adopted plan in the absence of the clerk. - 20 Subordinate to facts found. Not necessary to the resolution of the dispute. - 26 Subordinate to facts found. COPIES FURNISHED: R. Jerry Harris P. O. Box 107 McIntosh, FL 32664 Anna Colwell P. O. Box 135 McIntosh, FL 32664 Thomas C. Stott Marie Stott P. O. Box 551 McIntosh, FL 32664 David Wilcox, Esquire 425 Pleasant Grove Road Inverness, FL 32652 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue is whether the City of Winter Springs' (City's) plan amendment adopted by Ordinance No. 2005-29 on June 12, 2006, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City was incorporated in 1959 and is located just inside Seminole County in a highly developed area surrounded by the City of Oviedo to its east, the City of Casselberry to the south, the City of Longwood to the west, Lake Jesup to the north, and the City of Orlando a few miles to the southwest. The City adopted the amendment in question. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the City. Keewin is a Florida corporation and has a contract to purchase the property that is the subject of the challenged plan amendment. It offered comments in support of the plan amendment during the adoption process. The Association is a Florida Homeowners Association operating as a not-for-profit corporation under Section 720.301, Florida Statutes. It currently comprises approximately 1,378 residential units on 550 acres within the City, including single-family attached and detached dwellings, apartments, and condominiums. The Association is made up of nineteen separate subassociations of residents; however, the Association serves as the "master association." One of the subassociations (Greens Point) lies "a stone's throw" to the east from the subject property, while the others lie further east, separated from the subject property by another residential subdivision known as Wildwood (which is not a part of the Association). Wildwood has a MDR land use category, which is the same land use being sought for the Keewin property. Besides five miles of nature trails, the Association also owns and maintains five parks, a tennis facility, a pool, and a clubhouse. A representative of the Association offered comments, recommendations, or objections to the City during the adoption of the amendment. As a property owner within the City who submitted objections to the plan amendment during its adoption process, the Association meets the definition of an affected person under Section 163.3184(1)(a), Florida Statutes, and accordingly has standing. As discussed below, however, the City and Intervenor (but not the Department) argue that the Association still lacks standing because its Board of Directors never authorized the filing of the initial Petition in this matter. Background In 2005 the City began consideration of an application by Keewin (on behalf of the current owner, Dittmer Properties, Inc.) to change the land use on the 47.7-acre tract of property. The land use change was also accompanied by a proposed change in the zoning of the property; however, that matter is not of concern here. The amendment was initially considered and approved by the City Commission at a meeting conducted on February 13, 2006. An amendment transmittal package was then sent to the Department for its review. After the Department issued an Objections, Recommendations, and Comments Report (ORC Report) on April 20, 2006, which noted four specific objections to the map change, the City provided further information to the Department to resolve these concerns. On June 12, 2006, the City voted to adopt Ordinance No. 2005-29, which approved the map change in issue. On August 4, 2006, the Department published in the Seminole County Edition of the Orlando Sentinel its Notice of Intent to Find the City of Winter Springs Comprehensive Plan Amendment in Compliance. Sometime in September 2006, the Association filed its initial Petition for a hearing to contest the plan amendment. The Petition was apparently dismissed without prejudice by the Department, with leave to file an amended petition. On September 25, 2006, the Association filed its Amended Petition raising the following objections: the new land use would be incompatible with the surrounding land uses; the land use change "further erodes" the City's ability to meet the requirements in its Plan for industrial uses; the amendment will have a "negative overcrowding impact on schools, particularly Highlands Elementary"; the amendment will cause overcrowding of the nearby roadways; the amendment will negatively impact the City's level of service standards for recreational facilities; and the amendment conflicts with various provisions within Florida Administrative Code Rule Chapter 9J-5 and Section 163.3177, Florida Statutes. Authorization by the Board of Directors Citing various provisions within the Articles of Incorporation and the By-Laws, and the sometimes conflicting testimony of two members of the Association's Board of Directors, the City and Intervenor have argued extensively in their Joint Proposed Recommended Order that the Association's Board of Directors did not formally authorize its outside counsel to file the initial Petition in this matter. They point out that under the By-Laws, in order for the Board of Directors to initiate a legal action, as it did here, prior to the filing of a petition, it must have either had a vote of the majority of the Directors at a meeting at which a quorum was present or consent in writing by all members of the Board of Directors. See Art. VI, §§ 6.5 and 6.8, By-Laws. They further contend that the president of the Board of Directors, Paige N. Hinton, had no authority, as she assumed she did here, to advise another member of the Board of Directors, Helga R. Schwarz, that Ms. Schwarz could authorize outside counsel to file a petition with the Department. The affairs of the Association are managed by a Board of Directors made up of seven members. See Art. V, § 5.1, By- Laws. When this matter arose, Ms. Hinton served as president of the Board of Directors while Ms. Schwarz served as its secretary and a member. Both testified at the final hearing. When the plan amendment was first being processed and considered by the City in its early stages, a number of Association residents approached members of the Board of Directors and voiced their concerns with the proposal. Based upon those concerns, the Board of Directors held a special meeting on January 13, 2006, to discuss the issue. All seven directors were present at the meeting. A copy of the minutes of that meeting has been received in evidence as Respondents' Exhibit 3. The minutes are normally prepared by Bonnie J. Whidden, a full-time employee who serves as property manager, and "are not required to be detailed." After preparation by Ms. Whidden, the minutes are then reviewed at the following month's meeting and approved for form. There is no indication in the record that the Board of Director's outside counsel attended the meeting in question. The minutes reflect that the following action was taken at that meeting: The Board discussed the implications facing The Highlands if the Dittmer parcel were to be rezoned from light industrial to medium density residential as proposed by Keewin Real Property. Discussion ensued on impacts to The Highlands' recreational amenities, neighborhood roads, school capacities, and other concerns. The Board agreed that the proposed change in zoning was not in the best interest of The Highlands. The Board agreed to hold a community town hall meeting on the Keewin Large Scale Plan Amendment for The Highlands' residents in order to provide residents with information and to seek their input and feedback prior to the public hearing. The Board discussed committing funds for Clayton & McCulloh's legal services to represent The Highlands' interests on this issue. A motion was made to empower Ms. Schwarz to work with Clayton & McCulloh on this matter and to represent the Association at any city meeting related to the Dittmer rezoning. The motion was seconded and passed unanimously. Discussion ensued regarding having Clayton & McCulloh represent the Association at the city's public hearing on February 13, 2006. Ms. Schwarz would discuss the matter with counsel and apprise Ms. Hinton. Although the minutes refer primarily to the Association's opposition to the rezoning of the property, it is fair to infer that the Board of Directors was opposed to both the rezoning of the property and a change in the land use on the FLUM. According to Ms. Hinton, the Association intended that Ms. Schwarz act as the Board of Director's "primary point of contact with Clayton & McCulloh [its outside counsel] should [the Association] need to petition the [S]tate, and also to speak on behalf of the Association at City [C]ommission meetings for the City of Winter Springs." However, authorization to file a petition with the Department was not discussed at the meeting nor voted on. This is because it would have been premature to do so at that point as the amendment had not yet even been formally considered or adopted by the City. As the minutes disclose, the Board of Directors directed that Ms. Schwarz, a long-time resident and its secretary, represent the Association "at all city meetings" and to liason with its outside counsel. Acting on those instructions, she attended the February 13, 2006, meeting of the City Commission, when the Commission voted to transmit the amendment package to the Department for its preliminary review, and the meeting on June 12, 2006, when the map change was finally approved. (She also attended several meetings of the City Planning and Zoning Board, which presumably considered the zoning change.) At least twice, Ms. Schwarz presented oral objections on behalf of the Association at City Commission meetings. On an undisclosed date before the Association's initial petition was filed, Ms. Hinton spoke with Ms. Schwarz by telephone and advised Ms. Schwarz that pursuant to the Board's decision on January 13, 2006, Ms. Schwarz should instruct its outside counsel to file a petition challenging the new amendment. This information was given to outside counsel, who presumably filed the initial Petition, which was later amended on September 25, 2006. After the January 13 meeting, the Board of Directors was given a number of "updates" concerning the status of the plan amendment throughout the adoption and Department review process, including advice that a petition had been filed by outside counsel with the Department. However, no other formal action was taken by the Board concerning this matter before the initial petition was filed in September 2006. On advice of outside counsel, on November 16, 2006, a special closed meeting of the Board of Directors was called by Ms. Hinton to discuss "pending legal matters," including ratification of the Petition that had previously been filed. One reason for calling this meeting was the fact that the issue of whether the Board of Directors had authorized the petition to be filed had just arisen during the course of discovery for the hearing. A copy of those minutes is not of record since they were not reviewed and approved until the Board of Directors held its December 2006 meeting. Although the record is somewhat confusing (due to conflicting testimony) as to what action was taken at the meeting, it is clear that the Board of Directors (of whom six were present) orally ratified the filing of the Petition by "unanimous consensus." The Amendment The amendment consists only of a change in the FLUM on the subject property from Industrial to MDR. There are no accompanying changes to the text of the Plan. The property is currently vacant, but carries an Industrial land use and PUD zoning. The land uses surrounding the subject property are industrial to the north (across Shepard Road), medium density residential (including multi-family units) to the east, industrial and low density residential to the south, and predominately industrial and commercial to the west. There are "public lands" on the southeast side of the property. Less than one thousand feet west of the subject property and running in a north-south direction is U.S. Highway 17-92, a major arterial roadway maintained by the State. (Just across that road is the City of Longwood.) Shepard Road, a two- lane collector road which runs in an east-west direction, adjoins the northern boundary of the subject property and part of the Association and eventually exits to the west into U.S. Highway 17-92 at a major intersection with a traffic signal. Petitioner's Objections Petitioner has challenged the amendment based on compatibility, need, schools, roads, recreational facilities, and alleged violations of various provisions of Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Part II, Florida Statutes. There are no challenges to the amendments based upon internal inconsistency with the City's plan, inconsistency with the East Central Florida Planning Council's Strategic Regional Policy Plan, or inconsistency with the State Comprehensive Plan. Compatibility. The Amended Petition contains allegations that the MDR designation is incompatible with surrounding land uses, and, in particular, with the Association property that is located to the east of the subject property that is designated as MDR on the FLUM. The ORC Report raised an objection regarding land use compatibility of the amendment with the industrial land use designation to the west. The concern was that the amendment was not supported by data and analysis demonstrating that the amendment was compatible with the industrial use. In response to the objection, the City set forth Plan provisions that require buffering and also provided a Development Agreement in which the developer agreed to build a buffer between the amendment site and the industrial properties to the west. By doing so, the City adequately responded to the objection by indicating that the subject property would contain a buffer to address the potential compatibility concerns with the adjoining industrial property. The MDR designation on the subject property provides a transition from the commercial and industrial uses fronting U.S. Highway 17-92 and is compatible with the MDR to the east. Thus, the MDR use on the subject property is appropriate as a transitional use between the residential to the east and the industrial and commercial properties to the west that front U.S. Highway 17-92. Based on the evidence, it is fairly debatable that the MDR land use is compatible with the industrial use to the west and the MDR to the east. Need for Industrial Lands The Amended Petition alleges that the change from Industrial to MDR "further erodes" the ability of the City to meet requirements in its plan for industrial uses. There is no Plan policy that calls for a certain number of acres of industrial property. Rather, the Plan contains an analysis of the existing industrial acreage and a projection for future acres. Looking only at the industrial land use category, the City has 170 acres, and the plan amendment reduces that number by 47 acres or approximately twenty-eight percent. However, industrial is allowed in other future land use categories besides the industrial category. Moreover, the industrial land use designation has been on the property since at least 1991, but has remained vacant. Thus, the appropriateness of the industrial designation at this location did not come to fruition. By contrast, the City's analysis indicated a need for approximately 328 additional acres of MDR land. The FLUM change on the Keewin property furthers the need for that land use. Also, as found above, the subject property is an appropriate location for the MDR because it serves as a transition, and the property had remained vacant under the industrial future land use designation since 1991. Coordination With Schools The Association has also contended that the amendment "will have a negative overcrowding impact on schools, particularly Highlands Elementary," which lies just north of Shepard Road and serves the Association residents. Unless elected by local option, local governments are not required to have a school facilities element in their comprehensive plans at this time, are not required to have a level of service (LOS) standard in their plan for school facilities, and are not required to implement school concurrency. The City has not elected the local option of school concurrency. At this time, the Department requires only coordination of the plan amendment with the Seminole County School Board (School Board) so that the School Board and the City have a general understanding of the potential implications of the plan amendment. The ORC Report contained an objection regarding coordination of the amendment with the School Board. In response to the objection, the City indicated that it provided notice of the amendment to the School Board and an additional opportunity for School Board comment. The City also provided an analysis from the School Board indicating that the amendment would generate only 76 students. Additionally, in the Development Agreement between the City and the Developer, the Developer agreed to pay $1,235.00 for each residential unit to the School Board in addition to the school impact fees required for each residential unit. The Agreement for this mitigation represents an additional step toward helping to address what is the understanding of the impact on schools and is a further indication of coordination between the land use and school planning. The Department does not currently have a standard to use to measure the adequacy of the dollar amount since school concurrency is not required at this time. Therefore, the City has not established LOS standards. Given these considerations, it is fairly debatable that the City has demonstrated adequate coordination with the School Board regarding school facilities. Impact on Transportation The Association further contends that the LOS on public streets serving the Association's members and serving property owned by the Association will deteriorate. It also contends that traffic flowing from the subject property will overcrowd and/or negatively impact the Association. In support of these contentions, the Association presented the testimony of Harry A. Burns, Jr., a professional engineer, regarding potential traffic impacts based upon his review of the Plan and transportation element. According to the Plan, the segment of U.S. Highway 17-92 north of Shepard Road is currently operating at LOS F, which is below the adopted LOS standard. As noted earlier, U.S. Highway 17-92 is a major arterial very close to the subject property. Although the Plan indicates that U.S. Highway 17-92 is slated for a six-lane project by 2010, the Plan also indicates that it is anticipated the LOS will still remain at F. Mr. Burns opined that Shepard Road and Sheoah Boulevard, a minor two-lane collector road which winds through the Association in a north-south direction, will be "impacted" by the MDR land use designation. He concluded that a traffic study should be done for Sheoah Boulevard because it is a collector road and is in the amendment's impact area. Although he testified that Shepard road would be impacted, he had no information indicating that Shepard Road would be negatively impacted. Also, he did not know whether the plan amendment would result in a reduction in the operating LOS for Shepard Road and Sheoah Boulevard. Petitioner's expert also opined that traffic generated by a change in the land use would have a different trip distribution than traffic generated by industrial. He testified that, from a traffic circulation standpoint, it was likely that residential traffic would be more willing to travel east through the Association than would industrial traffic because the industrial traffic would prefer to access the nearby U.S. Highway 17-92 to the immediate west. He further opined that there were not "attractors" for industrial traffic to travel east through the Association. He admitted, however, that the City's Town Center as well as the Greenway toll road (State Road 417) were located to the east of the subject property. Although the expert believed that the trip generation characteristics of an industrial land use would be different than those for a residential land use, he agreed that he would need to model the trip distribution to accurately determine where the traffic would go. The witness had not done that prior to the hearing. Data and analysis relative to traffic impacts were submitted to the Department by the City and the Florida Department of Transportation (FDOT). Based upon its review of the plan amendment, on March 22, 2006, FDOT provided a letter to the Department in which it determined that an Industrial land use would generate 7,176 average daily trips (ADT) and 1,308 PM (afternoon) peak hour trips. On the other hand, a MDR designation would generate only 3,936 ADT and 394 PM peak hour trips, resulting in a decrease of 3,240 average daily trips. This is a substantial reduction. All experts in this case agreed with the FDOT's assessment. FDOT further concluded that because the "amendment would result in a decrease in daily trips . . . FDOT has no comments on this amendment." The letter did not raise any concerns regarding impacts to U.S. Highway 17-92, a state road under its jurisdiction. The City Engineer and the City's expert planner established that a further traffic study or analysis at this stage was unnecessary because the land use change resulted in a substantial decrease in trips. In addition, the Department's planner opined that reducing the trip generation potential from the amendment parcel is a strategy to reduce the potential traffic on the road network that, in combination with other actions, can have a significant effect on helping improve the coordination between land use and transportation relative to the operating LOS on the roadways. Due to the specific nature and context of this particular amendment, he also agreed that no further general planning or transportation analysis was warranted at this stage. In fact, the reduction helps the Plan better coordinate land use and transportation in terms of the potential trips that might occur on the road system. Coordination of land use and transportation facilities was appropriately addressed at the plan amendment stage through the significant reduction in trip generation potential on the property. Finally, although Petitioner's expert pointed out that the City's Plan indicates that even with scheduled improvements the segment of U.S. Highway 17-92 north of Shepard Road will have deficiencies by the year 2010, he could not say that the amendment would cause LOS deficiencies on that road or indicate with any degree of precision the effect the amendment would have on the LOS. As noted above, he did not perform a traffic analysis of the amendment. Given these considerations, it is found that Petitioner did not demonstrate beyond fair debate that the amendment will result in LOS deficiencies on U.S. Highway 17-92, Shepard Road, or Sheoah Boulevard. Further, it failed to prove beyond fair debate that the amendment is not in compliance with respect to transportation issues. Open Space and Recreational Land and Facilities Contrary to the Association's assertion, the plan amendment will not impact or adversely affect the City's LOS standards for recreational facilities. There have been increased recreational facilities in the City since the Plan was written, which has increased the LOS that is available, and there is no LOS deficiency for parks through the year 2010. Indeed, the LOS will be met even if park lands are not built on the subject property. The Development Agreement between Keewin and the City requires Keewin to include park lands on the subject property. The Agreement specifically provides a paragraph on "Parks and Recreation" which includes the following language in paragraph 4: In accordance with Winter Springs Code Section 20-354 and other applicable provisions of the City’s Comprehensive Plan and Code, the Developer agrees to dedicate an appropriate amount of land as a park for the residents of the Project. Such park shall have recreational facilities built in accordance with the standards of the National Recreational Association. In addition, such park shall be protected through deed restrictions . . . which shall ensure the preservation of its intended use, the payment of future taxes, and the maintenance of the park and facilities for a safe, healthy and attractive living environment. The park shall be included in the phasing plan, if any, and shall be constructed and fully improved by Developer at an equivalent or greater rate than the construction of the residential structures for which it serves. Therefore, the subject property will provide its own park and recreation area on-site. There is sufficient land on the site to accommodate on-site park facilities based on the residential densities that might be allowed on the subject property. The Department established that the land use is being adequately coordinated with recreational facilities. There is appropriate coordination between the land use and recreational facilities, and the residents of the subject property would not have to make use of any other city park facilities. Petitioner acknowledges that the Developer's Agreement indicates that the Developer will provide for a park; however, Petitioner still complains that there is not enough detail about the parks to be provided on-site. However, there is no requirement at this stage of the process that such a degree of specificity for parks be provided. The evidence supports a finding that a change to MDR is compatible with adjacent land uses and will have no impact on private parks and recreation areas on adjacent lands. There is insufficient evidence to support a finding that the plan amendment will impact the Association. Indeed, the subject property will have two City parks that service the area and a 315-acre county-owned community park facility less than a mile from the subject property. Consistency With Rule and Statutory Provisions The Amended Petition alleges that the amendment is inconsistent with various provisions of Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Florida Statutes. However, Petitioner did not present any testimony addressing any of the rule or statutory provisions. Conversely, the evidence presented by Respondents and Intervenor demonstrates that the amendment is consistent with these provisions. Accordingly, it is found that the amendment is not inconsistent with Florida Administrative Code Rules 9J-5.006(3)(b)1., 9J-5.006(2)(a), 9J- 5.006(3)(c)2. and 3., 9J-5.016(1)(a) and (b), 9J-5.016(2)(b), 9J-5.016(3)(b)1. and 5., 9J-5.016(3)(c)5., 9J-5.0055(2)(a), and 9J-5.0055(3)(b) and (d), and Section 163.3177(3), (6)(a) and (e), Florida Statutes, as alleged in the Amended Petition. Trespass and Vandalism Concerns Finally, Petitioner has alleged that residential development of the subject property will increase the unauthorized use of its private recreational facilities and amenities, as well as increase vandalism to its personal property by non-residents. However, allegations regarding potential trespass and unauthorized use of recreational facilities on nearby lands is not a compliance issue under Chapter 163, Florida Statutes. Issues Under Section 120.595(1), Florida Statutes In its Amended Petition filed on September 25, 2006, the Association raised five grounds for determining the plan amendment to be not in compliance: increased traffic that would impact the Association's members; school overcrowding, and particularly the elementary school just north of Shepard Road; inadequate open space and recreation land and facilities, including unauthorized use of Association facilities, as a result of the new development's residents and children; reduced industrial zoning; and inconsistencies with various provisions within Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is no evidence that the Association has ever participated in a prior proceeding involving the City or Keewin and the same project. The Association representative, Ms. Schwarz, acknowledged that before the Amended Petition was filed, the Association did not consult with any experts regarding the issues raised in that filing. According to Ms. Schwarz, the allegations represented concerns expressed by various members of the Association to the Board of Directors. Most of these concerns are specifically reflected in the minutes of the meeting held on January 13, 2006. However, the Association did consult with outside counsel in drafting the issues in the Petition. This is evidenced by the fact that at least three of the concerns in the Amended Petition (traffic, school overcrowding, and inadequate open space and recreational facilities) were previously discussed in detail in a letter from outside counsel to the City on February 7, 2006, or just before the City Commission initially met to consider the amendment. Although the case was originally scheduled to be heard in February 2007, on October 31, 2006, Intervenor filed its demand for an expeditious hearing under Section 163.3189(3), Florida Statutes. Accordingly, by Order dated November 1, 2006, this case was rescheduled to be heard on November 29, 2006, under the mandatory fast track timelines in that statute. Because of this short timeframe, Association counsel represented during a status conference on November 10, 2006, that he was experiencing difficulty in interviewing and hiring outside experts on such short notice, particularly with the intervening Thanksgiving holidays. This was confirmed by Ms. Hinton at final hearing, who represented that if the hearing had been held in February 2007, the Association had planned on hiring a number of experts. Even so, on short notice, the Association was able to engage the services of a professional engineer who offered expert testimony on the traffic issue. The remainder of its evidence was presented through lay witnesses, by cross- examination of the other parties' experts, and by documentation. No direct evidence was affirmatively presented on the issue of whether the plan amendment was in conflict with various provisions of Department rules or Florida Statutes. As to all other issues, even though the Association did not prevail on any of its claims, it did present some evidence, albeit minimal in some respects, in support of its position. There is no evidence, direct or circumstantial, to support a finding that the Association's primary motive in filing its Petition was to simply harass the City or developer, delay the project (which will be built on the property after the land use change is approved and building permits obtained), or needlessly increase the cost of litigation for those parties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2005-29 is in compliance. Jurisdiction is retained to consider the City's Motion for Sanctions Against Petitioner and Intervenor's Motion for Sanctions, Fees and Costs filed under Sections 120.569(2) and 163.3184(12), Florida Statutes, if renewed within 30 days after issuance of the final order. DONE AND ENTERED this 3rd day of January, 2007, 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 3rd of January, 2007.
The Issue The issues in this case are whether the Small Scale Comprehensive Plan Amendment No. 05S-01 (the Plan Amendment) adopted by Polk County (County) through the enactment of Ordinance No. 05-004 is “in compliance,” as that term is defined by Section 163.3184(1)(b), Florida Statutes,1 and whether Petitioner, Citizens for Proper Planning, Inc. (CPPI), has standing as an “affected person” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
Findings Of Fact The ECRA is a local special district governmental agency established pursuant to Chapter 163, Part III, Florida Statutes, and is composed of a seven-member board of directors. The boundaries of the Eloise Community Redevelopment Area include an area consisting of approximately 665 acres within the unincorporated Eloise area of Polk County (the Redevelopment Area). The Subject Property is located within the Redevelopment Area. See JE 8A. The ECRA meets once a month, except July, when they do not normally meet. Its purpose is to discuss and implement the ECRA Redevelopment Plan’s six objectives within the Redevelopment Area. The ECRA opposed the Plan Amendment by and through its attorney and submitted oral and written comments, recommendations, and objections to the County regarding the Plan Amendment during the Plan Amendment adoption proceedings. As a part of its presentation to the County regarding the Plan Amendment, the ECRA delivered to the County, ECRA Resolution No. R-05-01, objecting to the Plan Amendment. The parties agree that the ECRA has standing in this proceeding. Petitioner, Bruce Bachman (Mr. Bachman), resides in Winter Haven, Polk County, Florida. His residence is located outside of the Redevelopment Area and is approximately three (3) miles from the Subject Property. He is employed as the operator (since 1980) and general manager of Phoenix Industries, LLP, (Phoenix), located at 621 Snively Avenue, County Road (CR) 655 in Eloise, which is adjacent to and across the street from the Subject Property. Mr. Bachman has served as the Chairman of the Board of Directors of the ECRA since 1998. Phoenix operates a warehousing and distribution complex for dry, refrigerated, and frozen food products east of Snively Avenue and across the street from the Subject Property. The Phoenix property stretches north and south within an elongated area within the Redevelopment Area, and is open 24-hours a day, seven days a week.2 See JE 8A at "30". (The railroad, designated with a red line, runs north and south through the Phoenix property. JE 8A.) Phoenix has spent approximately $115,000 changing the angles of its buildings and moving docks so that trucks could maneuver on the property, and not have to enter Snively Avenue to do so. Mr. Bachman is involved with the Eloise residential area and the Redevelopment Area generally and his contributions to the Eloise area are well-noted in the record. His work with the community includes working with the students at Snively Elementary School. Individually, and on behalf of the ECRA, Mr. Bachman submitted oral and written comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Bachman has standing in this proceeding. Petitioner, Johnny Brooks (Mr. Brooks), resides at 143 8th Street, Eloise, Polk County, Florida, approximately three (3) blocks southwest from the Subject Property. His home is located within the main residential component of the Redevelopment Area. He was born in Eloise (on 5th Street) and has lived, with his wife, at the 8th Street address for 41 years. Mr. Brooks also serves as Vice-Chairman of the Board of Directors of the ECRA. Although disabled, Mr. Brooks is an active member of the Eloise Community. For example, he and his wife conduct a “homework club” at the Eloise Community Resource Center (opened in 2002) located between 7th and 8th Streets and Snively Avenue, which is east and down the block from his residence. JE 8A at "2". They also use the computer lab at the resource center for adult education. They use the neighborhood Snively/Brooks Park, JE 8A at "4", approximately one block south of the Brooks' residence and west of the Snively Elementary School, JE 8A at "3", for, among other activities, Easter egg hunts and Christmas parties. Mr. Brooks is also involved in the Eloise Neighborhood Association, which offers adult computer classes, GED classes, and classes in English as a Second Language. He and his family use other resources within the Redevelopment Area, such as the Snively Elementary School, and a post office, JE 8A at "1", which is located approximately one block north of the Subject Property between 4th and 5th Streets, near Snively Avenue. Mr. Brooks attends the Eloise United Methodist Church (built in 1966-1967), which is located on land designated as Industrial (IND) on the FLUM. 3 JE 8A at "10". This church is located on the southwest side of Snively Avenue, and approximately five or six blocks south of the Subject Property and approximately two blocks south of the Snively Elementary School and the Snively-Brooks Park.4 Mr. Brooks submitted oral comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Brooks has standing in this proceeding. CPPI is an organization comprised of approximately two hundred members, located throughout Polk County, Florida. CPPI has been an existing corporation since 2002. No application, request to join or payment of dues is currently required for membership. According to its executive chairperson, Jean Reed, its purpose is to "better plan for our growth in Polk County." Ms. Reed lives approximately one mile east of Eloise and four of five of the CPPI Board of Directors live within a mile of Eloise. All CPPI members live in the County. CPPI had been involved in County hearings and an administrative hearing involving a small scale comprehensive plan amendment. The organization currently encourages donations and plans to charge dues next year. CPPI submitted oral comments, recommendations and objections to the County during the Plan Amendment adoption proceedings. No evidence was presented to show that CPPI owns real property within the County. The County and the Intervenor dispute CPPI’s standing in this proceeding. The County is a political subdivision of the State of Florida, empowered to adopt, implement, and amend its Comprehensive Plan in accordance with the laws of Florida. Intervenor, Don C. Smith (Smith or Intervenor), owns the Subject Property. He purchased the Subject Property of 9.9 acres, which is part of a contiguous 20-acre site, in May of 2003. Mr. Smith learned that the Subject Property had an RL-4 land use designation just prior to his purchase of the Subject Property. The parties agree that Mr. Smith has standing in this proceeding. The Eloise Community Redevelopment Area The Redevelopment Area consists of approximately 665 acres. EE 2, Plan at 30. It is generally bounded by the CSX railroad to the north of US 17; by Lake Lulu and Shell Road on the east; by Snively Avenue (CR 655) on the south; and by Wahneta Canal and a portion of Wahneta farms on the west. JE 8A.5 (Snively Avenue is a four-lane undivided, major collector highway, but is not a buffer.) Both historically and presently, the Redevelopment Area has been composed of mixed uses in an urban area. Under the FLUM, there are eight separate land uses within the Redevelopment Area: Industrial (IND), Business Park Center (BPC- 2), High Impact Commercial (HIC), Institutional (INST-1), Community Activity Center (CAC), Residential Suburban (RS), Residential Low-1 (RL-1), and Residential Low-4 (RL-4). JE 8A. Beginning at the northern portion of the Redevelopment Area and moving from west to east, south of the CSX railroad and approximately one block south of US 17, the land uses designated on the FLUM are HIC, CAC, and HIC. Moving southward and east of Snively Avenue, the land use designation for a triangular portion of land is BPC-2. The land use designation adjacent to and immediately south of the BPC-2 designation and east of Snively Avenue is designated as IND. The IND designation covers the land in a southerly direction until Snively Avenue intersects with Croton Road. The land to the east and adjacent to the BPC-2 and IND designations is designated as RL-1. There is a small portion of land near Shell and Croton Roads at the southern boundary of the Redevelopment Area designated as Residential Suburban (RS). (The RS designation continues to the east outside of the Redevelopment Area. Lake Lulu is to the east of the eastern RL-1 and RS designations.) There is also land designated as RL-1 west of Snively Avenue, bisected by Unnamed Street, extending west of Wahneta Canal and south-southwest of the Snively Elementary School/Snively-Brooks Park area, to the southwestern boundary of the Redevelopment Area.6 The Snively Elementary School and the Snively-Brooks Park are located in the INST-1 land use designation.7 JE 8A. Approximately 150 children walk to and from this elementary school (with another 60 to middle and high schools outside the Redevelopment Area), utilizing the sidewalk bordering the western portion of Snively Avenue. The majority of the children attending the elementary school reside in the RL-4 designated area (mainly between 1st and 9th Streets). Mr. Smith agreed that the elementary school was in close proximity to the Subject Property. Mr. Smith testified that after meetings with the ECRA, he moved the fence in front of the Subject Property and business back ten feet so that the children could have more room to walk down the street. He also instructed his drivers of big trucks and heavy equipment not to enter the Subject Property during times when the children are going to and from school. There are several school crossings, crossing Snively Avenue. There is a bus stop at 5th Street and Snively Avenue for children attending middle and high school. JE 8A at "6". There are also bus stops on 7th Street and in front of the elementary school. JE 8A at "5" and "7". Except for the residential portions of the CAC and BPC-2 areas, the primary residential area of the Redevelopment Area is generally bounded by US 17 and 1st Street on the north, the Wahneta Canal on the west, and to just north of Snively Elementary School and 9th Street on the south. JE 8A; EE 2, Plan at 6 and Figure 2. The Eloise Community Redevelopment Area Uses 1. In General The Redevelopment Area, for at least the last 40 years, has supported a wide variety of industrial, commercial, institutional, and residential uses. Mr. Brooks and Mr. Smith testified that the Redevelopment Area has supported these mixed uses and has historically been defined by the interrelationship of these various uses with the predominant industrial activities within its boundaries. In the past, the established residential area (RL-4) was once a successful working-class neighborhood which primarily provided homes to those workers who were employed in the citrus plants located within the industrial classified areas. That residential area is now blighted and provides housing for low and moderate income families. Though well established, the RL-4 residential area contains a substantial number of vacant lots within that residential designated area. 2. Redevelopment Area Problems and Redevelopment During the early 1980’s, Eloise was a troubled community, suffering, for example, from theft and vandalism. The community had difficulty finding minority contractors willing to work at Phoenix because of the problems associated with the community. By the early 1990s, the residential area of the Redevelopment Area had deteriorated to such an extent that the Housing and Neighborhood Development Division (HND), an agency of the County, became actively involved in the redevelopment of the community. In 1992, the Eloise Neighborhood Association was formed. In 1996, a Neighborhood Revitalization/Redevelopment Plan was commissioned by HND. This plan was prepared by County staff. Also in 1996, the HND and the Eloise Neighborhood Association prepared the Eloise Neighborhood Revitalization/Redevelopment Plan, which “focused on the 138 acres generally bounded by the CSX Railroad on the east, the railroad and US 17 on the north, the Wahneta Canal on the west, to just south of the Snively Elementary School. Its recommendations included improved social services, land use changes, housing programs and infrastructure improvements.” In 1998, a Declaration of Slum and Blight was adopted by the Board through Resolutions Nos. 98-08 and 98-66, which, respectively, made a finding of blighting conditions in Eloise and adopted a redevelopment plan for Eloise. As a result, the ERCA was created pursuant to Section 163.356, Florida Statutes, to rehabilitate, conserve, and/or redevelop the Redevelopment Area. In 2000, the Board, pursuant to Section 163.360, Florida Statutes, adopted Ordinance No. 00-33, approving of the Eloise Redevelopment Plan as the Community Development Plan for the Redevelopment Area. It was the purpose and intent of the Board that the Eloise Redevelopment Plan be implemented in the Redevelopment Area. The Board made numerous findings in Ordinance No. 00- 33 including a determination that “[t]he Plan conforms to the general plan of the county as a whole” and that “[t]he Plan conforms to the Polk County Comprehensive Plan.” The Board also determined that “[t]he need for housing accommodations has increased in the area.” The Eloise Redevelopment Plan has not been adopted as part of the County's Comprehensive Plan. Thus, the Plan Amendment need not be consistent with the Eloise Redevelopment Plan to be “in compliance.” The May 2000, Eloise Redevelopment Plan describes the then existing ownership patterns such that “[t]he existing Eloise residential neighborhood between 1st and 9th Streets is subdivided into platted, fifty-foot wide lots. Most are 100-125 feet in depth. Lots along 9th Street abutting the school are platted as 70-foot wide lots. The ownership pattern in this area typically follows the lot lines. Most are individually owned lots. (See Figure 6).” EE 2, Plan at 16. Particularly relevant here, it is also stated: “Lots 33 and 34 [part of the Subject Property] are each approximately 9 acres and are owned by Alterman Transport Corporation (ATC). The site is currently used for storage and, in the past, was zoned GI [General Industrial] and R-3. In the current Comprehensive Plan, however, this site is planned for Residential Suburban (RS) to be compatible with the surrounding neighborhood. The trucks are a legal-nonconforming use and may continue but any future development shall comply with the RS land use district.” EE 2, Plan at 16. The Eloise Redevelopment Plan also recommended that the Alterman Trucking Annex, also known as the Alterman Transportation Corporation, be developed for up to 75 single- family homes by the end of 2004. EE 2, Plan at 32; JE 3 at 3 of (The Subject Property was also formerly known as the Alterman Motor Freight Terminal. JE 2, 8/10/2004 site map.) In 2001, the County also changed the classification of the Subject Property from RS to RL-4 pursuant to Ordinance No. 01-45. See Finding of Fact 54. In addition to the creation of the ECRA, the County, through the HND, has attempted to revitalize the Redevelopment Area. Since 1993, HND has spent approximately $4.4 million dollars in these efforts. These funds have been spent on community policing ($424,790), slum and blight clearing ($47,428), housing rehabilitation ($186,807), parks and recreation ($149,982), water/sewer/drainage ($1,094,677), construction of the Eloise Community Center ($2,147,037), replacement of five homes ($314,138), and rehabilitation and repair of five homes ($46,819). As part of the Eloise Redevelopment Plan, many additional infrastructure improvements have been proposed, such as fire hydrants, turnaround areas for emergency vehicles and fire trucks, storm water installation, and sewer for the Residential Area of Eloise between 1st and 9th Streets and between Snively Avenue and the canal. The proposed projects for water, sewer, and storm water include 350 parcels to be served in this Residential Area. The construction of the Eloise Community Center has been the most costly expense in these efforts. After the County obtained this parcel from Phoenix Industries, it was discovered that the land was contaminated and more than $400,000 was spent on environmental clean-up costs for this property. The ECRA and the County have made progress in the area of code enforcement. Furthermore, crime has been cut in half and a drinking ordinance was passed by the County upon request of the ECRA and the Eloise Neighborhood Association. Eloise, with the County's cooperation, also initiated a Community- Oriented Policing program. There has been an increase in construction in the area, both on the residential and commercial/industrial side of Snively Avenue. The ECRA has also been working on a beautification strategy. For example, Phoenix spent $35,000 for landscaping, removing barbed wire, installing an irrigation system, and installing an attractive entrance to its facilities. Further beautification is planned for other areas along Snively Avenue, the main gateway to the area from US 17, and improvements to Snively Elementary School, for which the ECRA allocated up to $10,000. Currently, the socio-economic status of the families living within the residential portion of the Redevelopment Area is low and moderate income. But, as noted above, the area is being revitalized, including the addition of several Habitat for Humanity-built homes. Mr. Bachman confirmed that "[t]hings have changed now," including the employment of minorities and an increase in diversity at the elementary school. The Subject Property The Subject Property is located within the Redevelopment Area on the southwest side of Snively Avenue between 5th and 6th Streets. JE 8A. The Subject Property consists of approximately 9.9 acres, which is part of a 20-acre parcel owned by Mr. Smith. Tr. 261. (There is a vacant parcel not subject to the Plan Amendment, also acquired by Mr. Smith at the same time, adjacent to and west of the Subject Property, which appears to be within a flood zone area. JE 8A at “46”. The canal serves as the western border for this parcel.) Currently, there are ten to eleven residences along 5th Street, north of the Subject Property, and ten residences between the Subject Property and 6th Street, south of the Subject Property. See EE 7. There does not appear to be any appreciable distance between these residences and the Subject Property. Aside from the residential homes north and south of the Subject Property, there are also retail, auto repair, and other commercial uses which border on Snively Avenue. See, e.g., IE 1, aerial with 15 photographs; JE 3 at 5 of 27; Tr. 295-297; JE 8A. According to Mr. Smith, he requested the land use designation change to cure the non-conforming status of the Subject Property. All operations on the Subject Property had ceased for less than one year when he purchased the Subject Property. The Subject Property has historically and, except as noted above, continuously been utilized since the late 1960’s for industrial-type purposes, including motor freight activities which include loading and unloading citrus trucks, racking, truck repair, and truck weighing. These activities would not necessarily be restricted to an Industrial land use designation;8 the current use of the Subject Property as a motor freight terminal is also permitted within a BPC-2 land use designation. There has been no substantial change in the use of the Subject Property since 1980.9 Mr. Brooks testified that while he was growing up in Eloise, the Subject Property "was primarily truck parking for the citrus plant." He "worked for the scale house back in the late 60's before the plant went down and all [they] did was like park the trucks there for unloading and which would be in the citrus plant itself." However, he never knew the Subject Property "to be an industrial park itself," during the late 1960's. Historically, Mr. Snively, who died in 1957, owned several different businesses across the street from the Subject Property, including a fresh fruit packing house, JE 8A at "20", juice plant, JE 8A at "21", concentrate plant, JE 8A at “22”. The plant closed in 1969 or 1970. In and around 1972, during the summer, Mr. Smith worked for the Snively operation when they parked their citrus trucks on the Subject Property and then for the Alterman operation on-site when he loaded and unloaded trucks. Under the County's zoning ordinance adopted in November 1970, the Subject Property, along with the Phoenix Industries Property, its adjoining property, and the property southeast and adjacent to Snively Elementary School, were zoned as General Industrial (GI). Like the Subject Property, this industrial area is located east and immediately adjacent to property classified as residential (RS) (although the property is presently undeveloped). By an amendment to the FLUM adopted by Ordinance No. 91-06 on April 19, 1991, the Subject Property was classified as RS, rather than IND.10 At the same time, the Phoenix Industries Property, its adjoining property, and the property immediately adjacent to Snively Elementary all maintained their Industrial classification. The May 2000 Eloise Redevelopment Plan recommended, in part, consideration of "a plan amendment from RS to RL-4 for the properties north of Snively [Elementary] School and west of Snively Avenue" which included the Subject Property. EE 2, Plan at 38. On July 11, 2001, the County adopted Ordinance No. 01- 45, which changed the land use designation on the FLUM from RS to RL-4, for all of the property (including the Subject Property) between 1st Street and just south of 9th Street and between Snively Avenue on the east and the canal on the west. EE 1 at map page 2. The land use designation for the Snively- Brooks Park was also changed to INST-1 from IND. Other land use designations were changed pursuant to Ordinance No. 01-45. EE 1. See also Tr. 130-136, 139-140. The FLUM changes implemented strategies set forth in the Eloise Redevelopment Plan and adopted recommended changes to the FLUM. See Tr. 163. The RL-4 designated property is located immediately adjacent to and on the north, west, and south sides of the Subject Property. JE 8A. Across Snively Avenue from the RL-4 property is the industrial area which was previously used in the citrus industry and which is currently used by Phoenix warehousing and trucking activities. JE 8A. "The purpose of the [RL-4] District is to provide areas for low density residential needs of residents in urban areas who desire areas with smaller lots, a minimum of 6,000 square feet." § 204A7., Land Development Code (LDC). The County and Mr. Smith contend that the Subject Property was mistakenly or erroneously classified as RS in 1991 and RL-4 in 2001. However, the preponderance of the evidence indicates that no mistake or error was made in 1991 or 2001 based, in part, on the chronology of events regarding the land use changes mentioned above. Merle H. Bishop, A.I.C.P., the current Director of Growth Management for the County, has been an employee of Polk County for 30 years, and was involved in the adoption of the original Comprehensive Plan in 1991. In preparing land use designations for the initial FLUM, he used aerial photographs primarily and the existing zoning at the time. Since that time, he and staff have discovered errors in mapping the land uses of property, including industrial. Typically, the errors have been corrected when presented to the Board for comprehensive plan changes to the FLUM. Mr. Bishop testified that pursuant to a policy in the Comprehensive Plan, the County desired to “recognize industrial uses.” Tr. 444-445. According to Mr. Bishop, an active industrial use would only be eliminated with good reason, i.e., such as it was a remote and isolated industrial use. Tr. 455. According to Mr. Bishop, the Subject Property, the southern parcel by the elementary school, and the Phoenix Industries property made up a major industrial use area. Tr. 456. Although Mr. Bishop stated the Subject Property "would have been" designated as Industrial in 1991 given its use, Tr. 511-512, Mr. Bishop could not "say whether or not [they] missed this on the map when [they] mapped it. I mean it appears -- I mean, when you look at the map, it's very general; or whether there was an intention to not map it." Tr. 483-484. Mr. Bishop did not testify persuasively that the Board, in 1991 or in 2001, erroneously designated the Subject Property as RS and then RL-4. The February 2, 2005, staff report, mentions the applicant’s contention that a mapping error occurred, but implicitly rejects this argument. JE 3 at 11 and 12 of 27. Staff stated: The site has recently changed ownership and the current property owner wants the non-conforming uses to become conforming uses. Recognizing the existing use will enable to [sic] owner to continue utilizing the site as it has historically been used and allow the redevelopment of the property as needed. In addition, the use has remained the same since the early 1970’s according to the applicant. The applicant also states that Policy 2.113-A2 of the Comprehensive Plan states that the [FLUM] Series shall include all major existing industrial areas; since the property has historically been used for industrial uses, the recognition of the site will correct the County’s mapping error. On the other hand, staff and the ECRA has [sic] indicated, for this and the prior requested land use change (CPA 04A-05), that the impacts to the residential neighborhood is [sic] more significant than the redevelopment of the site for commercial or industrial uses. The County worked with the residents, business owners, and land owners in the area to develop a redevelopment plan, in which, the site was intentionally made non-conforming by the community and the County in order to create separation between the industrial uses across the street from the residential uses on the west side of CR 655 (Rifle Range Road [sic]). Therefore, the applicant’s primary argument for recognizing the historical use is not relevant. JE 3 at 12 of 27. Mr. Bishop was not directly involved with the staff review although he participated at the pubic hearing before the Board. If the Subject Property were vacant, Mr. Bishop would not recommend an Industrial land use designation. He supports the land use change because of the existing (at the time) use of the Subject Property and to have the property be a conforming use. Tr. 506-507. The history of industrial-type use on both the Subject Property and other sites in the Redevelopment Area has been a subject of significant concern. Although no tests have been conducted to determine whether the Subject Property is contaminated, Dr. Cherry testified that as a result of its long industrial use, it is likely that contamination will be present, which would render its use for residential purposes not realistic. Tr. 221-223. Since the subject property is located near the property upon which the community center was constructed and both parcels were part of a larger industrial area and utilized for similar uses, Dr. Cherry suspects that the Subject Property will likewise be contaminated. Tr. 222. If the Subject Property is contaminated, it is Dr. Cherry's opinion that there will be insufficient funds to clean the area. Tr. 219. Consequently, Dr. Cherry opined that if the Subject Property could not be used for industrial purposes, it would likely be unable to be developed as residential and most likely would be abandoned, thereby becoming a “brownfield.” This would significantly burden the redevelopment efforts in the Redevelopment Area. However, the Subject Property has not been declared a “brownfield” and no finding can be made regarding the environmental condition of the Subject Property based upon the record of this case. The Small Scale Plan Amendment Application and Adoption On or about August 10, 2004, Mr. Smith filed an application requesting the County to re-designate the land use of the Subject Property from RL-4 to IND. JE 2. According to the “Narrative Summary,” “[t]his change will provide for the continuation of historical motor freight uses and provide for optional industrial uses.” Id. On January 4, 2005, the County published Notice in a newspaper of local circulation providing that the Board would consider the adoption of the Plan Amendment at its meeting of January 19, 2005. At the January 19, 2005, meeting, the County tabled consideration of the Plan Amendment to its meeting of February 2, 2005. The Polk County Planning Division Staff report is dated February 2, 2005. This report contains a detailed analysis of the application. The Planning Division recommended denial of the Plan Amendment. (The report indicates that the Planning Commission recommended approval (3 to 1 vote) of the Plan Amendment.) The Planning Division found, in part, that "the proposed development request IS NOT compatible with surrounding land uses and general character of the area of the residential uses on the southern side of Snively Avenue (CR 655) and IS NOT consistent with the Polk County Comprehensive Plan for a land use change to Industrial (IND) because it would likely intrude into the existing residential neighborhood, allow for more intensive uses to be developed next to existing homes, and not be consistent with the approved Eloise Redevelopment Plan." (Emphasis is original). On February 2, 2005, the Board voted to adopt the Plan Amendment by the adoption of Ordinance No. 05-004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order concluding that the Plan Amendment adopted by Polk County Ordinance No. 05-004 is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2005.
The Issue Is Southworth Advertising Displays, Petitioner (Southworth), entitled to a permit for a sign in Madison County, Florida, 1.5 miles west of U.S. 221, on the north side of I-10 facing east, DOAH Case No. 99-1660T, to be issued by the Department of Transportation, Respondent (the Department)? Is Southworth entitled to permits issued by the Department for a sign in Madison County, Florida, 1.31 miles east of County Road 255, on the north side of I-10 facing east and west, DOAH Case No. 99-1661T?
Findings Of Fact Permit Denial Southworth applied to the Department for a state sign permit for a location in Madison County, Florida, 1.5 miles west of U.S. 221 on the north side of I-10 facing east. By separate application, Southworth applied for sign permits for a sign in Madison County, Florida, 1.31 miles east of County Road 255 on the north side of I-10 facing east and west. If permitted, all signs would be located within portions of the interstate highway system controlled by the Department for purposes set forth in Chapter 479, Florida Statutes. That law confers regulatory authority on the Department in determining Southworth's ability to construct the signs. Following permit review the Department denied the applications based upon proposed agency action finding that Southworth was out of compliance with the requirements set forth in Section 479.111(2), Florida Statutes (1997). For the sign to be located in the vicinity of U.S. 221, there was an additional concern about the placement of the sign in proximity to the state right-of-way. At hearing the parties expressed a willingness to resolve that issue through the conduct of a survey of the parcel in determining the proper placement of the sign if otherwise permitted. Southworth challenged the denials by petitions filed March 23, 1999. Local Comprehensive Plan Madison County has a comprehensive plan in conformance with requirements in Chapter 163, Florida Statutes, to include a future land use map. Additionally, Chapter 4, entitled Land Development Code, addresses zoning within Madison County as land use development regulations. Section 4.2-2 to that code lists the land use districts within the county, to include A-2, also referred to as Agriculture-2. Section 4.4B specifically describes Agriculture-2 where it states: Purpose and Intent. These areas are predominantly in agricultural and silvicultural use. Allowable Uses. Agricultural. Residential, subject to the density standards in the code. Institutional, excluding residential care facilities and nursing homes, as contained in (i). Outdoor Recreational. Public Service/Utility, as contained in (i). Mining. General Commercial; neighborhood scale only; subject to locational requirements. Public, as contained in (i). Special Exception Uses: (see also Section 4.6-4). Borrow Pits intended for use exceeding 60 days; Residential care facilities and nursing homes; Prison/Correctional facilities. Public Service/Utility. Public. In association with the description of neighborhood scale, Section 4.5 Development Standards, B. Special Locational, density and intensity requirements, 4. Neighborhood commercial uses shall: Be located within three-hundred thirty (330) feet of the intersection of major roadways (principal arterial, minor arterial, major collector, or minor collector). Not exceed 10,000 square feet of gross floor area. Not occupy more than five (5) percent of the district in which the neighborhood commercial use is located. Contrary to Southworth's contention, free-standing signs such as those under consideration do not conform to the Agriculture-2 General Commercial Designation or any other designation in the land use district. The signs standing alone are unassociated with the general neighborhood commercial enterprise described in the land use development regulations. Even should the proposed free-standing signs be considered a general commercial activity, they are not located within 330 feet of the intersection of major roadways, failing which the signs would not be considered a neighborhood commercial activity allowed under terms set forth in the land use development regulations. Changes to Chapter 479 After the Department noticed its Intent to Deny the Southworth applications for sign permits, but prior to the formal hearing, amendments were made to Section 479.01(3) and (23), Florida Statutes, as those provisions are implicated in Section 479.111(2), Florida Statutes (1997). The effective date of those amendments was July 1, 1999. The amendments were made in House Bill 591, Section 37. As a result, Section 479.01, Florida Statutes, reads as follows: (3). 'Commercial or industrial zone' means a parcel of land an area within 660 feet of the nearest edge of the right of way of the interstate or federal aid primary system designated predominately for commercial or industrial use under both the future land use map of the comprehensive plan and the land use development regulations adopted pursuant to Chapter 163. If a parcel is located in an area designated for multiple uses on the future land use map of a comprehensive plan and the land development regulations do not clearly designate that parcel for a specific use, the area will be considered an unzoned commercial or industrial area if it meets the criteria of subsection (23). Where a local governmental entity has not enacted a comprehensive plan by local ordinance but the zoning regulations governing the area, the zoning of an area shall determine whether the area is designated predominately for commercial or industrial uses. (23). 'Unzoned commercial or industrial area' means a parcel of land designated by the an area within 660 feet of the nearest edge of the right of way of the interstate or federal aid primary system where the land use is not covered by a future land use map of the comprehensive plan for multiple uses that include commercial or industrial uses but are not specifically designated for commercial or industrial uses under the land development regulations or zoning regulation pursuant to subsection (2), in which there are located three or more separate and distinct conforming industrial or commercial activities are located. These activities must satisfy the following criteria: At least one of the commercial or industrial activities must be located on the same side of the highway and within 800 feet of the sign location; The commercial or industrial activities must be within 660 feet from the nearest edge of the right-of-way; and The commercial industrial activities must be within 1,600 feet of each other. Distances specified in this paragraph must be measured from the nearest outer edge of the primary building or primary building complex when the individual units of the complex are connected by covered walkways. Uses located within a 1,600 foot radius of each other and generally recognized as commercial or industrial by zoning authorities in this state. Certain activities, including, but not limited to, the following, may not be so recognized as commercial or industrial activities: 1.(a) Signs. 2.(b) Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands. 3.(c) Transient or temporary activities. 4.(d) Activities not visible from the main-traveled way. 5.(e) Activities conducted more than 660 feet from the nearest edge of the right-of-way. 6.(f) Activities conducted in a building principally used as a residence. 7.(g) Railroad tracks and minor sidings. 8. Communication towers. Non-compliance The parcels in question are located in areas designated for multiple uses under the future land use map. The local land development regulations do not clearly designate the areas where the parcels are found for a specific use. Therefore, Southworth must meet the criteria for unzoned commercial or unzoned industrial to qualify for the permits. To that end, three or more separate and distinct conforming industrial or commercial activities are not presently located in the areas where the signs would be placed when examining the criteria set forth in House Bill 591, Section 37, related to Section 479.01(23)(a) and (b), Florida Statutes.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which denies the applications for permits to place signs in Madison County, Florida, 1.5 miles west of U.S. 221 on the north side of I-10 facing east, and 1.31 miles east of County Road 255 on the north side of I-10 facing east and west. DONE AND ENTERED this 3rd day of September, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 3rd day of September, 1999. COPIES FURNISHED: Timothy D. Padgett, Esquire Penson & Padgett, P.A. 2810 Remington Green Circle Tallahassee, Florida 32308 Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Attn: James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Orange County Comprehensive Plan Amendments 2015-2- P-FLUE-1 and 2015-2-A-5-1, adopted by Ordinance 2016-17 on July 12, 2016 (the Plan Amendments), are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2016).1/
Findings Of Fact The Parties and Standing Petitioners, Seerina Farrell, Ariel Horner, Adele Simons, Marjorie Holt, and Kelly Semrad (the Individual Petitioners), own property and reside in the County. The Individual Petitioners submitted written or verbal comments, recommendations, or objections to the County during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of same (the Comment Period). Petitioner, Ronald Brooke, owns property and resides in the County. Petitioner Brooke submitted written or verbal comments, recommendations, or objections to the County during the Comment Period. Petitioner, Corner Lakes, owns property adjacent to the property subject to the Plan Amendments and operates a business in the County. Corner Lakes, by and through its representative, submitted comments, recommendations, or objections to the County during the Comment Period. The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. Intervenor Banksville is one of the co-applicants for the Plan Amendments and owns real property directly affected by the Plan Amendments. Banksville timely submitted oral or written comments to the County in support of the Plan Amendments during the Comment Period. Intervenor CHCG is one of the co-applicants for the Plan Amendments and is the agent of one of the owners of property directly affected by the Plan Amendments. CHCG timely submitted comments to the County in support of the Plan Amendments during the Comment Period. The Rybolt Intervenors are owners of property directly affected by the Plan Amendments and submitted comments to the County in support of the Plan Amendments during the Comment Period. The Property The property subject to the Plan Amendments is 2,796 acres of land located in eastern Orange County between State Road 50 (SR 50 or Colonial Drive) on the south and the Orange/Seminole County line on the north. The property lies wholly within the Econlockhatchee River Basin (Econ River Basin) and is open, active pasture land. The southern portion of the property is bounded on the west by South Tanner Road, a county road that intersects with SR 50 on the southwest corner of the subject property. Just beyond South Tanner Road to the west lies the Econlockhatchee Sandhills Conservation Area (ESCA). The northern portion of the subject property is directly adjacent to the County-mandated area buffering the Econlockhatchee River (Econ River). The subject property is bounded on the east by existing vested residential neighborhoods known as “rural settlements.” Corner Lake rural settlement is adjacent to the southern portion of the property, and Lake Pickett rural settlement is adjacent to the northern portion. Both of the adjoining rural settlements are served by Chuluota Road, another county road which intersects with SR 50 just beyond the frontage of the subject property. Chuluota Road runs north, where it intersects with Lake Pickett Road, which roughly bisects the subject property, and continues to run north to its intersection with McCulloch Road at the Seminole County border. The ESCA is approximately 710 acres of undeveloped property east of the Econ River previously used as pasture. Intervenors, Rolling R. Ranch and Rybolt, conveyed the property to the St. Johns River WMD in November 2008. The following language in the Agreement for Sale or Purchase is relevant to the case at hand: It is the intention of the Seller [Intervenors Rolling R. Ranch and Rybolt] to develop Seller’s Retained Lands into a mixed use project with Development of Regional Impact review and approval for substantial density. . . . Buyer expressly agrees Buyer, as a neighboring property owner, shall not require any buffering or setbacks on Seller’s Retained Lands. In the event any local authority requires a setback between the Property and the Seller’s Retained Lands, Buyer will accept 50% of such setback to be placed upon the Property up to a maximum of 35 feet. No roads, swales, ditches, fencing, landscaping, or other improvements shall be constructed by Seller within any setback area on the Property. The ESCA is owned by the St. Johns River WMD and, in part, by the County. The ESCA is a significant natural resource managed for a public benefit, namely, protection of the Econ River Basin, within which the Plan Amendments are located. The ESCA also hosts hiking and horseback riding trails and is open to the public for passive recreation use. The Plan Amendments The Plan Amendments comprise both a text amendment to the Future Land Use Element (FLUE) of the County’s Comprehensive Plan and an amendment to the County’s FLUM. The Text Amendment The text amendment creates “Lake Pickett” (LP) as a new future land use category within FLUE Goal 6: Protection of Rural Land Resources and Other Assets. LP is codified in FLUE Objective 6.8, which limits the application of the category to the area designated as the “Lake Pickett Study Area,” or LPSA, established on the County’s FLUM by the corresponding map amendment, and describes the geographic boundaries of the LPSA. Acknowledging that the new category will allow dense development within rural areas, Objective 6.8 provides that “[t]he LP designation manages the transition of development from surrounding rural neighborhood densities and preservation areas to more dense development clustered towards the center of the [LPSA].” Objective 6.8 provides that “[c]ompatibility is ensured on LP designated lands through the use of ‘Transect Zones’,” among other practices. “Transect Zones allow development to occur by gradually transitioning from less to more dense development.” The objective continues, as follows: Each Transect Zone shall have a stated density unique to that Transect, and each series of Transect Zones shall build upon each other from the least dense Transect to the most dense Transect. Transect Zones allow contiguous rural character to be preserved which may include like-to-like lot configurations along the boundary. Objective 6.8 is implemented by new Policies 6.8.1 through 6.8.15, which establish “Guiding Principles” for all future development in the LPSA; define the type, density and intensity of development in each Transect Zone; provide for buffers and other compatibility measures along the perimeter; and provide requirements for open space, community space, agricultural uses, community centers, the street network, trail system, a “green infrastructure plan,” neighborhood schools, and service by public infrastructure, including water and wastewater. Policy 6.8.2 provides for the following Transect Zones: T1 Natural/Wetland: “[N]atural lands” and areas that will remain undeveloped and/or designated for agriculture use, passive recreation, conservation, or related activities ” T2 Rural: “[S]parsley settled lands in open or cultivated states.” The policy allows an “average density” of two dwelling units per acre (2du/acre). T3 Edge: “[P]redominately single-family detached residential uses within walkable neighborhoods” and includes community buildings, community gardens and parks, and “central focal point uses” which are undefined. The policy allows an “average density” of 5du/acre, a maximum floor area ratio (FAR) of .25, or a combination thereof. T4 Center: Allows a “mix of residential . . . and non-residential uses, including commercial, office, service, and civic uses that serve a Lake Pickett community as well as the surrounding area.” The policy allows an “average residential density” of 6du/acre and an “average non- residential intensity” of .15 FAR. The policy requires location of “higher concentrations of development” within the “most southerly portion” of the Lake Picket Study Area “adjacent to SR 50, at a maximum FAR of 1.0.” Policy 6.8.8 calls for development of two separate communities: one north and one south of Lake Pickett Road. Policy 6.8.9 requires development to be organized into neighborhoods, maximum size of 125 acres each, organized around a “centralized focal point” such as a park, community garden, community center, civic building or use, day care facility, or “a similar type of use.” Neighborhoods shall contain a mix of housing styles and/or lot sizes “located within a 1/4-mile from the centralized focal point,” which shall “average a minimum of one acre in size,” and be connected to trails or “complete streets.” Policy 6.8.14 requires all development within the LPSA to be served by public water, wastewater, and reclaimed water facilities operated by the County, but acknowledges the County may require the developer to prepay for a portion of the capacity necessary to serve the development. Objective 6.9 and its implementing policies dictate the process for the property owners to obtain a FLUM amendment to LP. The FLUM amendment application must include a draft Conceptual Regulating Plan (CRP), a proposed development program, a justification statement, an Orange County Public Schools (OCPS) Consistency Determination Application, a Transportation Study, and a proposed community meeting schedule. The CRP is described as “a general and illustrative representation of the proposed development and location of the transects.” Policy 6.1.9 requires the following items to be depicted on the CRP, or attachments thereto: General location of Transect Zones; General location and types of the proposed agricultural uses (if applicable), natural areas, and transitional treatments; Location of existing and planned major roadways, trails or other transportation nodes; Location of potential and required connections, including external connections to adjacent roadways and those between the two Lake Pickett communities, and required internal connections between neighborhoods; General location of public school sites and a copy of the application for a Capacity Enhancement Agreement with OCPS; Net developable area for the project and for each of the Transect Zones; and Overall proposed community development program. According to Policy 6.1.9, a “CRP shall be provided during the transmittal process, and shall be refined throughout the review process” for the FLUM amendment. Properties obtaining the LP FLUM designation must be rezoned to Lake Pickett Planned Development (LP PD). The PD Regulating Plan (PD-RP) establishes the final locations of Transect Zones, open space and preservation areas, streets, neighborhoods, schools, trails, and parks. The text amendment does not require the PD-RP to be incorporated with the FLUM amendment to LP. The proposed development plan, including average densities and intensities by Transect Zone “shall be included and adopted as part of the Lake Pickett PD-RP.” The policy provides the development program “shall be substantially consistent with the program submitted with the CRP and approved with the LP FLUM amendment.” If the developer requests to increase the development totals for a Lake Pickett PD-RP, such change must be approved through an application to amend the Comprehensive Plan. The Map Amendment The FLUM amendment redesignates 1,237 acres of land, the southern portion of the LPSA, from the Rural to the LP category. The property encompasses “Lake Pickett South,” which is roughly bounded by Lake Pickett Road on the north, East Colonial Drive to the south, Chuluota Road on the east, and South Tanner Road on the west. The ESCA lies west of South Tanner Road, the property’s western boundary. The applicants proposed a FLUM amendment for the North Lake Pickett Community, which was not approved by the County and is not considered in the case sub judice. The property subject to the amendment is currently undeveloped and has a FLUM designation of Rural with a density limitation of 1du/10 acres. The LPSA is located wholly outside of the County’s Urban Service Area (USA). USA/RSA Concept The County employs the USA concept as “an effective fiscal and land use technique for managing growth.” The USA identifies areas where the County has primary responsibility for providing infrastructure and services to support urban development. The County has an overarching goal to direct its growth to the USA. FLUE Objective 1.1 states the County “shall use urban densities and intensities . . . to direct development to the [USA] and to facilitate such development.” Policy 1.1.1 states, “Urban uses shall be concentrated within the [USA]” except as specified in particular designations. Policy 1.2.2 requires that “Urban development during the 2007-2030 planning period . . . will occur only in the [USA]” and established exception areas. As part of its year 2000 update to the Comprehensive Plan, the County amended the plan consistent with a “strategy to focus development within the County’s USA.” See Policy 6.2.1. The USA boundary and acreage are based on the supply of usable land needed to accommodate the County’s population and employment forecasts through the year 2030. Policy 1.2.2 prohibits urban development outside the USA boundary, with certain inapplicable exceptions, during the 2007-2030 planning period. Residential development densities allowed within the USA range from Low Density Residential (LDR), up to a maximum of 4du/acre, to High Density Residential (HDR), up to a maximum of 50du/acre. That portion of the County outside the USA is designated as the Rural Service Area (RSA). The RSA designation is a tool for “managing agricultural lands, environmental lands, and historic resources.” To preserve and promote the “intended rural character” of the RSA, the County regulates the scale, density, and intensity of new development in the RSA. The only FLUE category correlating with the RSA is “Rural,” in which the County limits residential development to a maximum density of 1du/10 acres. Zoning Districts which correspond with the Rural land use category are Agriculture 1 (A-1), Agriculture 2 (A-2), Agriculture Residential (A-R), and Rural Country Estate Residential (R-CE-5). Exceptions to RSA Density Limitation The FLUE recognizes specific, established exceptions to the density limitation of residential development at 1du/10 acres within the RSA. These include Rural Settlements, Growth Centers, Specific Area Plans (SAP), and the Innovation Way (IW) Overlay. 1. Rural Settlements When the Comprehensive Plan was adopted in 1991, some “pockets” of existing development at densities greater than 1du/10 acres were intentionally excluded from the USA. These “rural settlements” are essentially “grandfathered” from the prohibition against urban densities within the RSA. Rural settlements recognize the need to maintain agricultural areas and rural uses in the RSA, while providing for rural communities. Some rural settlements “allow a transition of rural uses adjacent to the [USA] while avoiding development in active agricultural areas.” Pursuant to Policy 6.2.1, rural settlements may not be expanded beyond their current boundaries and the County may not establish any new rural settlements.2/ Rural Settlement (RS) categories were established at a range of densities between 1du/5 acres (RS 1/5) to 2du/acre (RSLD 2/1). These categories recognize and preserve the development patterns that existed at the time the Comprehensive Plan was adopted. Not all rural settlements were built out at the time of plan adoption. No plan amendments may be approved within rural settlements to RSLD (2du/acre) or higher densities, except for certified affordable housing projects. No plan amendments may be approved for densities in rural settlement at densities higher than 1du/acre. Lake Pickett South is located adjacent to the Corner Lake rural settlement, which is designated LDR and is built out at 4du/acre. Pursuant to Policy 6.2.15, new residential development in a rural settlement is restricted to a density of 2du/acre, which may only be located in limited areas adjacent to higher density or intensity urban development in adjacent municipal jurisdictions. 2. Specific Area Plans In 1995, the County created a Village land use classification to realize a long-range planning concept for Horizon West, a 16,846-acre development in west Orange County. FLUE Goal 4 and Objective 4.1 describe the purpose of the classification, as follows: GOAL FLU4 HORIZON WEST. It is Orange County’s goal to ensure sustainable, quality development in Southwest Orange County to allow a transition from rural to urban uses while protecting environmental quality. OBJ FLU4.1 The Village land use classification has been designed to address the need to overcome the problems associated with and provide a meaningful alternative to the leap-frog pattern of sprawl now occurring in western Orange and eastern Lake County; create a better jobs/housing balance between the large concentration of employment in the tourism industry and surrounding land uses; create a land use pattern that will reduce reliance on the automobile by allowing a greater variety of land uses closer to work and home; and, replace piecemeal planning that reacts to development on a project-by-project basis with a long-range vision that uses the Village as the building block to allow the transition of this portion of Orange County from rural to urban use through a specific planning process that uses a creative design approach to address regional, environmental, transportation, and housing issues. The Village land use classification shall be implemented through the adoption of Specific Area Plans (SAPs) for the Villages and a Town Center. FLUE Goal 4 is a long-range planning tool undertaken by the County in cooperation with the state land planning agency pursuant to section 163.3245, titled “Sector Plans.” This alternative to the Development of Regional Impact state review process was initiated by the 1998 Legislature to “promote and encourage long-term planning for conservation, development, and agriculture on a landscape scale,” and to “avoid duplication of effort” of data-gathering and analysis for developments of regional impact “while ensuring the adequate mitigation of impacts to applicable regional resources and facilities[.]” FLUE GOAL 4, Objective 4.1, and their implementing policies comprise 40 pages of the County FLUE and comprehensively govern the development planning for the area. The concept envisions development of a series of master planned “Villages,” ranging from 1,000 to 3,500 acres, with between two and four neighborhoods complete with diverse housing types, shops, workplaces, schools, parks, and civic facilities. Each Village is modeled on “an urban development pattern,” complete with a Village center, containing a mix of residential, office, commercial, institutional and public uses to serve surrounding neighborhoods; neighborhood centers, with a school, park, or other “focal point,” and convenience retail operations and offices to serve the immediate neighborhoods; and neighborhoods with open space, varying lot sizes and housing types, locating higher density housing closer to the neighborhood center. The approval process for Horizon West Village SAPs, includes development first of a recommended plan, based on public and County staff input on a presentation of alternative master plans at public workshops, then refinement of the recommended plan, through additional informational workshops, and submittal of a Final Master Plan to the County for review. The Village SAP is structured to require a minimum net density of 5du/acre. Thus, Horizon West is a specific exception to the density limit of 1du/10acres in the RSA. In the case at hand, the Intervenors have not applied for a SAP. However, the LPSA text amendment mirrors many of the development characteristics of Horizon West Village concept. 3. Growth Centers The Growth Center FLUE designation is available only as a Joint Planning Area with an outside jurisdiction (i.e., adjoining county or municipal government). Growth Centers recognize urban development outside of, and adjacent to, the unincorporated areas of the County. The County has established two Growth Centers: a Northwest Growth Center and a Growth Center/Resort located in the southeast. The density and intensity of the growth centers is established through a Planned Development (PD) process. 4. Innovation Way Overlay District The Innovation Way (IW) Overlay is established by FLUE Objective 5.1, which reads as follows: The Innovation Way Overlay is a conceptual transect-based overlay designation where the County envisions a transit-ready, multi- modal mixed-use, walkable community with sustainable economic development, adequate public infrastructure, and the protection and resource management of environmentally sensitive areas. The IW Overlay utilizes transect-based planning and “incremental urbanism” to “design complete communities requiring walkable streets, mix of uses, transportation options, and housing diversity.” FLUE Policy 5.1.5. The IW “Conceptual Urban Form” is adopted on the County FLUM as the “generalized and illustrative location and extent of transect zones that collectively depict the desired urban form for Innovation Way.” Similar to the plan amendment process provided for LP, the IW plan amendment process requires rezoning through as a PD, which will determine the adopted boundaries and locations of transect zones. The “proposed location of the transects shall be illustrated on the [Conceptual Regulating Plan] during the [FLUM] amendment process and finalized in the approved IW-PD- RP.” FLUE Objective 5.2. The IW Overlay district utilizes transect zones T1 through T5, and T-SD, a special district zone. Zone T3 accommodates neighborhood development which must be “walkable, highly connected by streets, trails and pedestrian paths, and adequately served by parks and open space.” Each neighborhood must contain a central “focal point.” Although the specific density will be set in the PD-RP, FLUE Policy 5.1.7 establishes a “planned yield” of 3-4du/acre within T3, with a range of 1-10du/acre. Zone T4 accommodates town centers within IW, and provides “a mix of residential, office, retail, light industrial, and high-tech/clean-tech uses.” FLU Policy 5.1.7 establishes a “planned yield” of 7du/acre within T4, with a range of 4- 20du/acre. The development pattern of the LP district is substantially similar to the urban form described for IW, and the use of transect-based planning to transition from surrounding rural development to more dense development within RP. Expansion of the USA The County allows for expansion of the USA boundary only in limited circumstances. FLUE Objective 1.3 and implementing policies provide a process for evaluating applications for expansion of the boundary. An applicant must submit data and analysis to demonstrate that the development would not constitute urban sprawl and is needed to satisfy acreage demands of the projected population. FLUE Policy 1.2.4 lists the applications which have met the criteria and are recognized as expansions to the USA boundary. The list contains approximately 38 developments ranging in size from 1.23 acres to 2,549 acres. In the case at hand, Banksville and CHCG have not applied for an expansion of the USA to encompass the LPSA. In fact, Jim Hall, one of the developer’s consultants, expressed his dismissal of an expansion to the USA to accommodate LPSA because expansions have “a ton of rules” associated with them. Challenges to the Plan Amendments A. Internal Inconsistency Petitioners allege the Plan Amendments are internally inconsistent with a number of Comprehensive Plan goals, objectives, and policies. Principle among them are the goals, objectives, and policies establishing the USA/RSA development framework: FLUE Goal 1, Objective 1.1, Policy 1.1.1, Objective 1.2, Policies 1.2.1 and 1.2.23/; Goal 6, Objective 6.1, and Policies 6.1.1, 6.1.2, and 6.1.3. The implicated goals, objectives, and policies read, as follows: GOAL FLU1 URBAN FRAMEWORK. Orange County shall implement an urban planning framework that provides for long-term, cost-effective provision of public services and facilities and the desired future development pattern for Orange County. OBJ FLU1.1 Orange County shall use urban densities and intensities and Smart Growth tools and strategies to direct development to the [USA] and to facilitate such development (See FLU1.1.2.B and FLU1.1.4). The [USA] shall be the area for which Orange County is responsible for providing infrastructure and services to support urban development. POLICIES FLU1.1.1 Urban uses shall be concentrated within the [USA], except as specified for the Horizon West Village and Innovation Way Overlay (Scenario 5), Growth Centers, and to a limited extent, Rural Settlements. * * * OBJ FLU1.2 URBAN SERVICE AREA (USA) CONCEPT; USA SIZE AND MONITORING. Orange County shall use the [USA] concept as an effective fiscal and land use technique for managing growth. The [USA] shall be used to identify the area where Orange County has the primary responsibility for providing infrastructure and services to support urban development. POLICIES FLU1.2.1 The [USA] boundary, and its acreage allocation, shall be based on the supply of usable land needed to accommodate the County’s population and employment forecasts by Year 2030 with respect to the County’s desired development pattern, the County’s ability to provide urban services and facilities, and the County’s urban strategies to achieve its desired development pattern. FLU1.2.2 Urban development during the 2007- 2030 planning period, as identified in FLU1.2.1, will occur only in the [USA] and the established boundary for the Horizon West SAP (identified on Map 2 in the Future Land Use Element of the Comprehensive Plan) and the Innovation Way Overlay (Scenario 5) . * * * GOAL FLU6 PROTECTION OF RURAL LAND RESOURCES AND OTHER ASSETS. The County will manage land uses within the [RSA], including agricultural lands, environmental land including the Wekiva Area, historic resources and Rural Settlements, so as to conserve these assets and their values. OBJ FLU6.1 RURAL SERVICE AREA. Orange County shall designate that portion of the County outside the [USA] as the [RSA]. The intended rural character and assets of the [RSA] shall be promoted through the following policies. POLICIES FLU6.1.1 The Future Land Use correlation for the [RSA] is: Future Land Use (R) Zoning Rural/Agricultural (1DU/10 AC) A-1, A-2, A-R, R-CE FLU6.1.2 Orange County shall enforce criteria to ensure the scale, and density and/or intensity of development within the [RSA] so that it promotes the intended rural character. The regulations may include, but shall not be limited to, height limitations and buffer requirements. FLU6.1.3 Residential uses in areas designated Rural shall be limited to a maximum density of 1du/10 acres. Density shall refer to the total number of units divided by developable land area, excluding natural water bodies and conservation areas (wetland areas). Agriculturally zoned areas that do not have active agricultural use may be rezoned to an appropriate residential category. Cluster zoning shall not be permitted in the [RSA] except where required for the protection of significant environmental features, such as Wekiva Study Area, Class I conservation area or rare upland habitat. Petitioners allege the Plan Amendments are inconsistent with the above-cited provisions because they allow urban development within the RSA, contrary to policy direction to concentrate urban uses within the USA; contrary to policies which prohibit urban development outside of the USA, Horizon West, and I W Overlay through 2030; and inconsistent with these strategies to achieve “the County’s desired development pattern” separating urban from rural uses through the USA/RSA tools. Respondent and Intervenors meet this allegation with an argument that the LP category does not constitute urban development. Indeed, much of the expert witness testimony on all sides focused on the issue of whether the development authorized by the Plan Amendments is urban in character. The experts agreed that the Comprehensive Plan does not define “urban development” and that the County has discretion to determine the characteristics of urban development within its jurisdiction. The experts further agreed that the “urban-ness” of development is not solely a factor of density, but also depends on factors, such as the uses themselves, as well as buffering, height limitations, and relationship between uses. The experts are correct that the Comprehensive Plan contains no glossary definition of “urban development,” which determines the specific threshold at which residential density becomes “urban.” The experts disagreed over whether a residential density of 4du/acre was rural or urban, and the parties’ arguments in their Proposed Recommended Orders rely on that testimony to varying degrees. None of the expert witness testimony on the issue of urban versus rural was persuasive. Testimony regarding whether 4du/acre was urban or rural was essentially irrelevant, in light of the fact that the Plan Amendments authorize densities of 6du/acre in T4. Whether 4du/acre is an urban or rural density is not dispositive of the issue. Moreover, because the Plan Amendments regulate density in terms of averages, they authorize densities greater than 4du/acre and 6du/acre in T3 and T4 zones. The experts on all sides ignored the plethora of evidence within the Comprehensive Plan itself that reflects the County’s determination of what constitutes urban development. The testimony of Petitioners’ experts, combined with the Comprehensive Plan itself, was the most reliable and persuasive evidence on this issue. For residential development within the USA, the Comprehensive Plan identifies four corresponding FLUM categories, ranging from LDR at up to 4du/acre, to HDR at up to 50du/acre. By contrast, for residential development within the RSA, the County has identified only one corresponding FLUM category, Rural/Agricultural at 1du/10 acres. See Policy 6.1.1. It is of primary importance to note that this is the only future land use category which corresponds with the RSA. In setting its goals for future development within the RSA, the County has adopted a policy limiting future residential development to a very low density. Even where the Comprehensive Plan acknowledges and grandfathers the preexisting “rural settlements” within the RSA at densities greater than 1du/10 acres, the Comprehensive Plan restricts the density of future buildout. The Comprehensive Plan recognizes rural settlements with LDR and Low-Medium Density Residential (LMDR) (max. 10du/acre) FLUM designations, but prohibits other properties within rural settlements from being amended to allow future development at those densities (except for certified affordable housing projects). See Policy 6.2.7. In fact, the Comprehensive Plan prohibits any FLUM amendments to residential densities in rural settlements exceeding 1du/acre. See Policy 6.2.9. Further, the boundaries of rural settlements may not be expanded, and no new rural settlements may be established. See Policy 6.2.1. In summary, the Comprehensive Plan acknowledges preexisting rural settlements in the RSA at densities as high as 10du/acre, but recognizes those as urban, not rural, densities. Even recognizing those urban densities preexisted the RSA designation, the Comprehensive Plan limits future changes to a much lower density of 1du/acre. Much of Respondent and Intervenors argument turned on the fact that the development surrounding the LPSA was at densities as high as 4du/acre, which was not inconsistent with the density proposed for the LPSA. This argument misses the point that the County grandfathered in those densities as urban within the RSA. The argument that the maximum densities proposed for the LPSA, up to 6du/acre in T4, is consistent with surrounding development is a red herring. It ignores the clear direction the Comprehensive Plan has set for future development, regardless of the exceptions that exist. It is contradictory for the County to treat the preexisting densities as exceptions, but justify the Plan Amendments, which propose future similar densities, based on the existence of those exceptions. In an apparent attempt to overcome the fact that the LPSA densities are similar to surrounding development and, thus, may be found to be urban densities, Respondent and Intervenors argue that density must be calculated based upon the net allowable acreage of the community, rather than the acreage of the individual T3 or T4 zone. Lake Pickett South contains 835 developable acres and the LP category authorizes 2,078 dwelling units across that community. Calculated using that method, the average net residential density for Lake Pickett South is 2.49du/acre. Hence, the proponents argue, the Plan Amendments authorize development at densities lower than the surrounding vested communities, thus, the LPSA development is at rural densities. Assuming, arguendo, Respondent’s and Intervenors’ contention is true, then the Plan Amendments cluster the average density of 2.49du/acre within the T2, T3, and T4 zones at densities as high as 6du/acre. Under that scenario, the Plan Amendments are internally inconsistent with FLUE Policy 6.1.3, which does not allow clustering of development within the RSA. As all the experts agreed, density alone does not determine whether the development authorized by the Plan Amendments is urban as opposed to rural. Other considerations include the uses authorized, as well as the development pattern and restrictions thereon. The Comprehensive Plan, clearly and specifically, articulates exceptions to the 1du/10acre density limit for future development in the RSA based upon particular considerations. For Horizon West, the consideration is the Village program of development directed at comprehensive, rather than piecemeal, development of a huge undeveloped area in the County’s southwestern area. For the Growth Centers, it is the recognition of the impact of development in the unincorporated County on adjoining local governments, and requiring joint planning for that development. Significantly, the Comprehensive Plan recognizes these exceptions as urban development, based upon both the densities and intensities of uses allowed, as well as development patterns and restrictions. The Comprehensive Plan recognizes Growth Centers as urban development implemented through PD zoning. See Policy 1.1.4.F. Villages within Horizon West have been approved with minimum overall net densities as high as 4du/acre (Village H and Town Center) and as high as 7du/acre (Village I). See Policy 4.1.4. These residential densities are recognized as urban densities. Furthermore, the development plan for Village development is specifically recognized in the Comprehensive Plan as an “urban development pattern.” See Policy 4.1.1 The characteristics identifying the Villages as an urban development pattern include the following: The requirement for a “series of integrated neighborhoods containing housing, shops, workplaces, schools, parks, and civic facilities essential to the daily life of Village residents.” The Village, and each neighborhood, shall be developed with a “center focus,” such as commercial, civic, cultural or recreational uses. Housing must be within a 1.2 mile radius of the Village Center, and where possible, housing units within a neighborhood should be within one-half mile of the neighborhood center. Neighborhoods shall encourage development of a variety of lot sizes and housing types. Each Village must have a well-defined edge, such as greenbelts or wildlife corridors permanently protected from development, as well as open space to serve the residents recreational needs in the form of squares, greens and parks. See Policy 4.1.1A., B., E., F., and G., and 4.1.5 In addition to the requirement for “ample open space,” in the form of squares, greens, and parks, an additional 7.5 percent of the developable land within each project must be permanently allocated to public open space. The LPSA encompasses a smaller land area than Horizon West, and will develop on a smaller scale, but in a very similar development pattern under the Plan Amendments. Similar to the “Village Principles” for Horizon West, the LP “Guiding Principles” require that each of the two communities: Be organized as neighborhoods designed around a “centralized focal point,” such as a park, community center, or civic building/use. Interconnect the communities within the LPSA by a multi-purpose trail linking each neighborhood focal point, such as the school or civic use. Have a minimum 35 percent open space, which may be comprised of both preservation areas, agricultural areas, buffers, neighborhood parks, and trail systems, as well as civic uses, community centers, and other built facilities. In addition, the LP Guiding Principles require each neighborhood to: Provide for a mix of housing styles and/or lot sizes. Be walkable, and no more than 125 acres in size. Locate housing within a quarter mile of the central focal point. Connect the central focal point to trails or “complete streets,” as well as schools and community parks. The Plan Amendments authorize a pattern of development in the LPSA recognized in the Comprehensive Plan as an urban development pattern.4/ Like the IW Overlay district, the RP category utilizes transect-based planning to provide a transition from rural uses outside the LPSA, to the more dense and intense uses at its core. The transect-based approach is specifically recognized by the Comprehensive Plan as comprising an “urban form” of development.5/ See Policy 5.1.2. Further, the development pattern for LP is similar to IW: T2 Low density development in a traditional rural setting; T3 Walkable neighborhoods, highly connected by streets, trails and pedestrian paths, and adequately served by parks and open space; Neighborhoods designed around a central focal point with dwellings located in close proximity thereto; School sites centrally located to serve neighborhoods; T4 Town Centers with a mix of residential, office, retail, etc. The Comprehensive Plan further identifies certain uses as urban, rather than rural. Policy 1.1.4 denotes office, commercial, industrial, institutional, and educational uses, as “predominantly urban” in use. The policy notes that these uses are predominantly found in the USA, but “may also be located within the rural settlements on a limited basis.” The policy goes on to acknowledge these uses are available in the USA as “Urban Mixed Use Option,” such as PD category. This policy also acknowledges allowance of these types of urban development within the RSA exception areas--Horizon West, International Drive Activity Center, and Growth Centers--as discussed previously. By contrast, Objective 6.1 and its implementing policies address only rural residential, agricultural, and agribusiness uses, and some institutional uses (e.g., wastewater treatment plants and landfill facilities) as allowable future land uses in the RSA. This section of the Comprehensive Plan also allows for consideration, by special exception, location of uses “that by their nature are appropriate to locate in the [RSA],” such as hazardous operations, gun ranges, landfills, and kennels. The Plan Amendments authorize development of predominantly urban uses within the RSA, but not within rural settlements or one of the previously designated exception areas. Nevertheless, Respondent and Intervenors maintain that development authorized by the Plan Amendments is not urban because the Plan Amendments “prohibit development which would have an overall urban density or intensity.” It is undisputed that the LPSA will allow residential development at a density of up to 5du/acre in T3 zones, and up to 6du/acre in T4 zones. Respondent and Intervenors refer to these as “small pockets of property” within the RSA which would have higher densities “more associated with urban development levels.” However, Respondent and Intervenors argue these small pockets are not prohibited by Policy 1.1.1 which requires that “[u]rban uses shall be concentrated in” rather than “limited to” the USA. Respondent and Intervenors ignore the language that the existing Comprehensive Plan also specifically limits future urban densities, which are not “concentrated in” the USA, to Horizon West, Growth Centers, IW Overlay, and “to a limited extent,” Rural Settlements. The policy language does not allow urban density anywhere else within the RSA. Instead, the policy directs urban densities outside of the USA to areas previously designated and planned for those densities. Based on the preponderance of the evidence, under the existing Comprehensive Plan, the density, uses, and pattern of development authorized by the Plan Amendments is urban, rather than rural. Jim Hall, Intervenors’ planning expert, acknowledged that he based the LPSA concept on these “exception areas” where “new rules” apply. Additionally, Dwight Saathoff, contractor purchaser of portions of Lake Pickett South, as much as admitted that the development approved for Lake Pickett South is urban, rather than rural, when he prepared a power point presentation for the adoption hearing. Based on the power point, Mr. Saathoff testified that “the Rural Service Area acreage would go from 58.6 percent of the total land, and with the Grow, it would be 58.4 percent. The Urban Service Area land was 41.4 and 41.6 with approval of the Grow.” [Tr. 595:3-6]. Mr. Saathoff’s testimony further supports a finding that the project converts rural land to urban use, without expanding the USA boundary to do so. The Plan Amendments are inconsistent with FLUE Goal 1, Objective 1.1, Policy 1.1.1, Objectives 1.2, Policies 1.2.1 and 1.2.2; Goal 6, Objective 6.1, Policies 6.1.1, 6.1.2, and 6.1.3.6/ Petitioners next challenge the Plan Amendments as inconsistent with FLUE Objective 1.3 and Policies 1.3.1 and 1.3.2. FLUE Objective 1.3 is titled “Application for Urban Service Area Expansion,” and prohibits new expansions of the USA unless supported by data and analysis that the expansion is consistent with other objectives, and requires expansions to be evaluated by the criteria established in Policies 1.3.1 and 1.3.2. Intervenors did not submit the Plan Amendments as an application to expand the USA boundaries. The Plan Amendments do not implicate this objective and these policies. The Plan Amendments are not inconsistent with FLUE Objective 1.3 and Policies 1.3.1 and 1.3.2. Petitioners next challenge the Plan Amendments as internally inconsistent with FLUE Objectives 6.2 and 6.3. FLUE Objective 6.2 reads as follows: RURAL SETTLEMENT. Rural Settlements provide for a rural residential lifestyle. In some instances, Rural Settlements allow a transition of rural uses adjacent to the [USA] while avoiding development in active agricultural areas. Rural Settlements were intended to recognize and preserve existing development patterns at the time the CP was adopted in 1991. The creation of Rural Settlements recognized the need to maintain agricultural and rural uses in the [RSA], while providing for rural communities. The Plan Amendments do not propose a rural settlement, a land use change within a rural settlement, or a boundary expansion of an existing rural settlement. Petitioners offered no persuasive evidence that the Plan Amendments implicate this policy. FLUE Objective 6.3 reads as follows: OBJ FLU6.3 Orange County shall protect and preserve certain existing Rural Settlements and their established neighborhoods, which by their particular location may be impacted by adjacent urban uses. This objective shall be made measurable by implementing the following policies: Petitioners did not challenge the Plan Amendments as inconsistent with any of the implementing policies, which enumerate development restrictions and procedures applicable to the following rural settlements: Lake Hart/Lake Whippoorwhil, Lake Avalon, and Wedgefield. The LPSA is not located in proximity to the listed rural settlements and Petitioners introduced no evidence that the Plan Amendments would have any impact on those rural settlements. The Plan Amendments are not inconsistent with FLUE Objectives 6.2 and 6.1. Petitioners also challenge the Plan Amendments as inconsistent with FLUE Goal 2, Objective 2.1, and Policy 2.2.17 which read, as follows: GOAL FLU2 URBAN STRATEGIES. Orange County will encourage urban strategies such as infill development, coordinated land use and transportation planning, and mixed-use development, which promote efficient use of infrastructure, compact development and an urban experience with a range of choices and living options. * * * OBJ FLU2.1 INFILL. Orange County shall promote and encourage infill development through incentives identified in the Land Development code for relatively small vacant and underutilized parcels within the County’s established core areas in the [USA]. * * * FLU2.2.17 Throughout the planning horizon, the County shall provide policy and program mechanisms that further the principles of sustainability, including limiting urban sprawl, protecting wildlife and environmentally sensitive natural areas, promoting efficient use of land and water, and creating an environment conducive to quality building and promoting sustainable economic development. The Plan Amendments interfere with and contradict the stated goal of promoting urban strategies such as infill. The Plan Amendments do, as Petitioner’s expert testified, exactly the opposite by directing urban development to areas outside the USA.7/ Objective 2.1, by its plain language, provides strategies applicable only to “relatively small vacant and underutilized parcels within” the [USA]. The objective is inapplicable to the LPSA. The cited policy requires the County to undertake policies and programs to limit urban sprawl, protect wildlife and environmentally sensitive areas, and promote efficient use of land and water. Petitioners presented no evidence that the County has not undertaken such broad policies and programs. The County introduced in evidence its Conservation Ordinance (Article X, Orange County Land Development Code), and its Econ River Protection Ordinance (Article XI), local programs appearing to implement Policy 2.2.17. Whether the Plan Amendments conflict with any of the implementing land development regulations is a matter beyond the scope of this proceeding. The Plan Amendments are inconsistent with FLUE Goal 2, but, at least arguably, consistent with Objective 2.1 and Policy 2.2.17. Petitioners next challenge the Plan Amendments as internally inconsistent with FLUE Policy 6.4.7, which reads as follows: Orange County shall provide for compatible public and/or private land uses adjacent to significant natural resources that are managed for public benefit. Methods of protection to be considered may include, but shall not be limited to, coordination with appropriate State agencies, Notice of Proximity, the use of density and intensity limitations on land use and development, and the use of buffers. Petitioners contend that the proposed LPSA is inconsistent with this policy due to its proximity to the ESCA. The ESCA is adjacent to the western boundary of the LPSA along South Tanner Road. Proposed policy 6.8.3 notes that “[l]ands located along the perimeter within the [LPSA] shall be compatible with adjacent land outside of the [LPSA], with the exception of the [ESCA].” (emphasis added). Thus, the text amendment acknowledges that the development proposed within the LPSA may not be compatible with the adjacent ESCA. To protect the adjacent ESCA from the impacts of development proposed within the LPSA, the text amendment requires “transitional treatment of the edges” of the LPSA, including a minimum 100-foot vegetative buffer along South Tanner Road “to preserve existing rural view sheds or create a visual buffer from the proposed development within Lake Pickett Communities.” The buffers must consist of “Florida native plant species, as required by Chapter 15 Article XI” of the County Code. The proposed policy also requires these buffer areas to be utilized only as natural/wetland zones. The approved RP for Lake Pickett South depicts all property adjacent to South Tanner Road as either T1 wetlands or T1 natural, with the exception of the property at the corner of SR 50 and Tanner Road, which is designated T4 with no buffer along South Tanner Road. Just inside the buffer, the RP designates property within Lake Pickett South for either T2 (2du/acre), stormwater retention, or agricultural (working farm) uses. The RP places higher density and intensity uses further from the “edge,” thus further from the border with the ESCA. The Plan Amendments were reviewed by both the St. Johns River WMD and the South Florida WMD (SFWMD). The St. Johns River WMD reported on September 9, 2015, that its review “focused on flood protection and floodplain management, wetlands and other surface waters . . . as they relate to important state resources and facilities that will be adversely impacted by the amendment, if adopted.” The applicable staff had no comments on the proposed amendments, but noted that the property subject to the amendments is located within the WMD’s Econ River Hydrologic Basin and any environmental resource permit will have to meet additional surface water management basin criteria. The SFWMD reported, “There appear to be no regionally significant water resource issues; therefore, the District has no comments on the proposed amendment package.” The Department of Environmental Protection “conducted a detailed review [of the Plan Amendments] that focused on potential adverse impacts to important state resources and facilities, specifically . . . wetlands and other surface waters of the state; federal and state-owned lands and interest in lands . . . .” The Department found “no provision that, if adopted, would result in adverse impacts to important state resources subject to the Department’s jurisdiction.” The County coordinated with appropriate state agencies for siting the LPSA adjacent to the ESCA. The RP reflects the use of buffers and density and intensity limitations as methods to protect the adjoining ESCA from development within Lake Pickett South. The text amendment reflects the use of “edge” buffers and transitional density and intensity limitations, through the transect zone approach, to achieve compatibility with the adjacent ESCA. The Plan Amendments are not inconsistent with FLUE Policy 6.4.7. Similarly, Petitioners allege the Plan Amendments are inconsistent with FLUE Objective 8.2, which reads as follows: COMPATIBILITY. Compatibility will continue to be the fundamental consideration in all land use and zoning decisions. For purposes of this objective, the following policies shall guide regulatory decisions that involve differing land uses. Petitioners did not identify any implementing policy with which the Plan Amendments are alleged to be inconsistent. Compatibility is not defined by the Comprehensive Plan. Compatibility is defined by the Community Planning Act 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.” § 163.3164(9), Fla. Stat. The parties did not dispute that this definition was applicable to analyzing consistency with Objective 8.2. Petitioners allege the development authorized by the Plan Amendments is incompatible with (1) adjacent rural settlements, and (2) its location in an important wildlife corridor. Petitioners first allege the LPSA is incompatible with the adjacent Corner Lake Estates and Lake Pickett rural settlements, due to the density, intensity, and mix of uses allowed by the Plan Amendments. The Lake Pickett rural settlement located adjacent to the LPSA on the northeast is vested at 1du/acre. The Corner Lakes rural settlement has an existing density of 4du/acre. As discussed previously, these densities are grandfathered from the RSA density limitation of 1du/10acres. The Comprehensive Plan clearly establishes densities of no greater than 2du/acre for future development in rural settlements. Regardless of whether the existing density of these two rural settlements is 4du/acre or greater, the Comprehensive Plan limits future development within the settlements to lower densities more consistent with the RSA. Because no RP has been approved for the northern section of the LPSA, it is impossible to discern what specific density of development may be allowed adjacent to the Lake Pickett rural settlement. Proposed Policy 6.8.3 will apply to development of the north LPSA, which provides that “lands located along the perimeter within the [LPSA] shall be compatible with adjacent lands outside of the [LPSA] . . . .” Aside from the statement that “substantial buffers consisting of Florida native plant species, as required by Chapter 15 Article XI of the Orange County Code, shall be used to replace or enhance perimeter transition treatment,” the Plan Amendments contain no specific requirement for buffer size between the LPSA and the Lake Pickett rural settlement.8/ Mr. Hall, accepted as an expert in land use planning and growth management, testified at length regarding the “edge” treatment, buffering, and lot sizes, designed to make the layout of Lake Pickett South compatible with the adjoining Corner Lakes rural settlement. The edges of Lake Pickett South abutting Corner Lake are all designated as wetlands, buffer areas, or stormwater facilities, with the exception of a strip of T3 residential at 4du/acre with minimum 50-foot lots. However, this strip adjoins existing undeveloped natural buffer area within Corner Lake, not existing residential lots. Overall, Lake Pickett South allows urban development to locate next to the existing Corner Lake rural settlement. The overall density, intensity, and mix of uses allowed in Lake Pickett South is inconsistent with the single-use residential rural community setting of Corner Lake. However, given the transect-based planning approach and the buffering and “edge” treatments required by proposed Policy 6.8.3, it is at least arguable that the development is compatible with the adjacent rural settlements. Petitioners next allege the LPSA is inconsistent with FLUE Objective 8.2 because it is located within an important wildlife corridor and introduces physical obstacles which impede movement of wildlife through the corridor. None of the Petitioners addressed this particular objective in their Proposed Recommended Order.9/ Petitioners did not prove that the LPSA is inconsistent with FLUE Objective 8.2, which specifies compatibility as the fundamental consideration in all land use decisions. Petitioners next challenge the Plan Amendments as inconsistent with Conservation Objectives C1.7 and C1.9. Objective C1.7 reads as follows: OBJC1.7 Orange County shall manage and protect plant and wildlife species designated as threatened, endangered or species of special concern through programmatic and planning approaches for ecosystem analysis and through adoption of land development regulations. The final environmental surveys conducted by Intervenor Banksville’s consultant, Bio-Tech Consulting, Inc., revealed the presence of six wildlife10/ species designated by the Florida Fish and Wildlife Conservation Commission (FWC) as either threatened, endangered, or of special concern. The County’s conservation regulations are limited to identification and protection of wetlands and the watershed of the Econ River Basin. The County has no regulatory authority over wildlife conservation or preservation. Petitioners introduced credible expert witness testimony regarding the presence of wildlife in the LPSA, and opinions regarding the adverse effects which development in the area, as proposed, is likely to cause. Petitioners clearly would have the County regulations go further to address, or perhaps prohibit, development impacting the wildlife habitats. The question at hand, however, is not whether the County’s adopted “programmatic and planning approaches for ecosystem analysis,” and the County’s land development regulations, adequately address the stated objective, to “manage and protect plant and wildlife species designated as threatened, endangered.” The inquiry in this case is limited to whether the Plan Amendments, as proposed, are inconsistent with the stated objective. Petitioners did not prove that the Plan Amendments are inconsistent with Objective C1.7. Objective C1.9 reads as follows: OBJ C1.9 Orange County shall require the protection of natural resources by minimizing adverse impacts from adjacent developments. This objective shall be made measurable by implementing the following policies. Petitioners are clearly concerned with the impact of the Plan Amendments on the plant and wildlife habitats in the adjoining ESCA. Petitioners’ expert ecologist testified extensively regarding the impact of new communities on the ESCA --increased passive recreational use, such as horseback riding, hiking, and picnicking, as well as the impact of domesticated pets on wildlife in the ESCA. Petitioners’ experts were insistent that the text amendment does nothing to minimize these adverse effects because proposed FLUE Policy 6.8.3 requires no buffer for the ESCA.11/ On the contrary, Policy 6.8.3 requires a minimum 100-foot native vegetated buffer along South Tanner Road, the border between the LPSA and the ESCA. Petitioners did not identify any measurable policy implementing Objective C1.9 with which the Plan Amendments are alleged to be inconsistent. Policy C1.9.2 mirrors the requirements of FLUE Policy 6.4.7, requiring “enhanced protective mechanisms, such as, but not limited to . . . buffers, vegetative buffers, setbacks, density restrictions, easements . . . that will permit continued habitat management practices in areas adjacent to major managed natural resources.” As discussed previously, the Plan Amendments incorporate buffers and density and intensity limitations, through the use of transect-based planning, to address the impact of the proposed development on the adjacent ESCA. Petitioners did not establish that the Plan Amendments are inconsistent with Objective C1.9. Petitioners allege the Plan Amendments are inconsistent with Conservation Goal 2, Objective 2.3, and Policy 2.3.1, which read as follows: GOAL C2 Orange County’s goal is to protect, enhance and maintain the unique and irreplaceable values, functions, diversity and benefit of the natural resources within the Econlockhatchee River Basin, Wekiva Protection Area and the Lake Apopka Drainage Basin. * * * OBJ C2.3 Orange County shall protect and preserve the surface water quality and quantity, wildlife populations and habitat, aesthetics, open space, historical and archaeological resources, floodplains, wetland areas, native upland areas and recreation lands of the Econlockhatchee River Basin by implementing the following policies. * * * C.2.3.1 The Land Development Code shall provide for the protection of the Econ River Basin through mechanisms such as upland buffers, specific restrictions within a 2,200 foot total width protection zone, requiring habitat and historical/archaeological resource assessments and protection, allowing for mitigation, open space or density credits, requiring landscaping to include use of native plant species, utilization of wetland areas as part of drainage facility systems, requiring State or Federal listed species protection, clustering of development, restricting floodplain encroachment, and limiting forested habitat fragmentation. Petitioners introduced no evidence to support a finding that the County’s land development code fails to provide the listed protections for the Econ River Basin. Respondent and Intervenors introduced in evidence Article XI of the County code, titled “Econlockhatchee River Basin Protection.” The article includes basin-wide regulations which include management plans for protection of endangered, protected, and species of special concern, use of native plant species in landscaping, regulations to limit adverse impact of development on hydrologic functions of conservation areas, upland buffers of 50 feet for conservation areas, and limits on discharge rates for stormwater management systems. John Miklos, Intervenor’s expert in environmental and ecological assessments and environmental and ecological planning, testified, credibly, that the County’s land development code is even more stringent than the St. Johns River WMD requirements because it imposes development restrictions within a 2,200 foot corridor on either side of the Econ River, in addition to the 1,100 foot “critical area regulations” imposed by the St. Johns River WMD. The article also contains specific regulations for a “critical area” defined as the main river channel extending 1,100 feet landward of the Econ River and its major tributaries. Nothing in the Plan Amendments exempts the development authorized thereby from the requirements of Article XI. Petitioners did not prove the Plan Amendments are inconsistent with Conservation Goal C2, Objective 2.3, and Policy C2.3.1. Petitioners next allege the Plan Amendments are inconsistent with Transportation Element Goal T1 and Policy T1.1.1.3, which read, as follows: GOAL T1 A safe, accessible, convenient, efficient and financially feasible multimodal transportation system which minimizes environmental impacts. * * * T1.1.1.3 Whenever reasonably possible, future roadway projects shall be designed to promote livability and land use- transportation integration, in part by avoiding the severing or fragmenting of existing neighborhoods. The County will coordinate with FDOT, the Central Florida Expressway Authority, and other appropriate entities to help ensure that limited access and other roadway projects which are constructed by them avoid or minimize negative impacts to existing neighborhoods, wildlife corridors, and sensitive natural areas and to coordinate these projects with conservation and land use decisions. Petitioners introduced no credible evidence that the transportation improvements necessary to serve the proposed development would sever or fragment existing neighborhoods or that the County would not coordinate the improvements to SR 50 with appropriate state agencies. Chuluota Road will require widening in conjunction with the proposed development. That road serves both Corner Lake and Lake Pickett rural settlements, but there is no evidence that the road project would sever or fragment those neighborhoods. Petitioners also alleged the Plan Amendments were inconsistent with Neighborhood Element Objective N1.1, which reads, “Orange County shall ensure that future land use changes are compatible with or do not adversely impact existing or proposed neighborhoods.” For the reasons cited in the discussion related to consistency with FLUE Objective 8.2, the Plan Amendments are consistent with adjoining neighborhoods based on the edge treatment requirements and transect-based approach to density. Finally, the Petitioners challenge the Plan Amendments as internally inconsistent with the Potable Water Element Goal 1, Objective 1.1 and Policies 1.4.2 and 1.4.3, which read, as follows: GOAL PW1 It is Orange County’s goal to provide an efficient and adequate level of water service and facilities in a cost effective manner to accommodate existing and future development. OBJ PW1.1 Orange County shall continue to provide for the correction of its existing water system deficiencies. This objective shall be made measurable by implementing the following policies. * * * PW1.4.2 Potable water service shall not be extended to areas outside the [USA] except in the following circumstances: The facilities to be extended will serve a Growth Center or other exception areas as provided in the Comprehensive Plan (CP); The Board of County Commissioners has made an affirmative finding that a public health hazard exists for existing development. Such facilities shall not serve as the basis for additional new development; The facilities are to be extended to provide adequate fire flows to existing developments which are located within one- half (1/2) mile of an existing waster transmission main; For approved sector plans as provided for in the CP; and The circumstances described under Policy PW1.5.2 and Policy PW1.5.3.12/ The Petitioners presented no evidence regarding deficiencies in the county’s water system or how the instant amendment would relate to the county addressing said deficiencies. No evidence was introduced on which to base a finding that providing water service to the LPSA would be inefficient, inadequate, or not cost-effective. The Plan Amendments do not require extension of water utilities to serve the proposed development. The County utilities department evaluated the Plan Amendments and reported that water mains on SR 50, Lake Pickett Road, and North Tanner Road are available to serve the development, as well as wastewater mains in the vicinity. The developer will be paying to connect the development to the existing water mains, as well as install the water and wastewater infrastructure within the development boundaries. The Plan Amendments are not inconsistent with PW Goal 1, Objective 1.1, and Policies 1.4.2 and 1.4.3. Urban Sprawl Petitioner Brooke additionally challenges the Plan Amendments as contrary to section 163.3177(6)(a)9., which provides that “any amendment to the future land use element shall discourage the proliferation of urban sprawl.” The Act defines urban sprawl 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.” The statute sets forth 13 primary indicators that a plan amendment does not discourage the proliferation of urban sprawl, and eight factors which, if met, determine a plan amendment discourages urban sprawl. Petitioner’s expert testified that the Plan Amendments are characterized by the at least nine of the indicators of sprawl. Intervenors’ expert disagreed. The first primary indicator implicated by Petitioner Brooke is that the development “[p]romotes, 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.” § 163.3177(6)(a)9.a.(II)., Fla. Stat. The Plan Amendments do direct urban development to locate within a rural area. The evidence did not establish how far the LPSA is located from the boundary of the USA.13/ Based upon Map 11 of the FLUM series, Corner Lake rural settlement is located 1.5 miles east of the USA boundary. The LPSA is located west of Corner Lake, thus closer than 1.5 miles from the USA boundary. Intervenors demonstrated the location of major employment centers within two miles of the LPSA, including the University of Central Florida and the Central Florida Research Park, both of which are located within the USA. The LPSA is not located at a substantial distance from existing urban areas. Assuming, arguendo, the location of the LPSA was considered to be at “a substantial distance” from existing urban areas, Petitioner Brooke introduced no evidence of undeveloped lands within or closer to the USA which are available and suitable for the proposed development. Petitioner Brooke did not prove that the Plan Amendments meet primary indicator (II). Petitioner next contends that the Plan Amendments fail to “adequately protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater recharge areas, lakes, rivers . . . .” § 163.3177(6)(a)9.a.(IV), Fla. Stat. As previously addressed, the Plan Amendments do not exempt the development from the County’s existing land development code requirements for identification and protection of conservation areas and special protection for the Econ River Basin, which are the County’s primary protection and conservation mechanisms. It is clear that Petitioners wish the County regulations went further, but that issue is beyond the scope of this proceeding. Petitioner did not prove that the Plan Amendments trigger primary indicator (IV). Petitioner next contends that the Plan Amendments “[f]ail[] to adequately protect adjacent agricultural areas and activities, including active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmland and soils.” § 163.3177(6)(a)9.a.(V). Adjacent uses to the south and east of the LPSA are rural residential settlements. The ESCA is adjacent to the west. No evidence was introduced establishing the uses to the north in Seminole County. No evidence was introduced to establish the use of adjacent rural settlement for any agricultural or silvicultural activities, either active or passive. The only evidence demonstrated that Corner Lake consists of residences and wetland conservation areas. Petitioner did not prove that the Plan Amendments trigger primary sprawl indicator (V). Primary indicator (XI) is that the development “[f]ails to maximize use of existing public facilities and services.” Potable water and wastewater facilities exist, and uncommitted capacity is available to serve the development as proposed. The County utilities department reviewed the Plan Amendments and reported sufficient plant capacity to serve the development at adequate levels of service. Parks and Recreation also reviewed the Plan Amendments and reported sufficient acreage capacity to serve the proposed development. The County fire rescue department reported that those portions of the property which are within 2.5 miles of Station 82 are within an “optimal emergency services delivery” area. Other portions are not within an optimal delivery area, but are within a seven-minute response time. Anecdotal testimony from the Corner Lakes HOA President regarding a delayed response time to a residential security alarm is not competent evidence on which to base a finding that the existing emergency response service is inadequate. The development will require significant investments in public roadway facilities in order to meet level of service requirements. Several segments of the major county roadways to be impacted by the development authorized by the Plan Amendments, Lake Pickett Road and Chuluota Road, are already overcapacity. Segments of SR 50 currently operate at an acceptable level of service, based on a six-laning project currently underway, but are projected to operate at an unacceptable level of service by the 2035 planning horizon. Transportation analysis shows significant and adverse impacts from the proposed development on all three roadways (at varying rates depending on the time of the day modeled). In order to approve the Plan Amendments, the developer has entered into a Transportation Network Agreement, and corresponding Term Sheet, by which it has committed to pay an estimated $16,000,000 to the State for widening impacted segments of SR 50, and an estimated $14,844,000 to the County for widening Chuluota Road from SR 50 to Lake Pickett Road. The Plan Amendments do not fail to maximize use of existing transportation infrastructure. The existing infrastructure is, apparently, over-maximized. The Plan Amendments do not trigger primary sprawl indicator (XI). Next, Petitioner Brooke argues the Plan Amendments “[f]ail[] to maximize use of future public facilities and services.” § 163.3177(6)(a)9.a.(VII), Fla. Stat. Because the Comprehensive Plan provides a strategy of designating the USA as the area for which the County is responsible for providing infrastructure and services to support urban development, Petitioner Brooke argues that location of urban development outside the USA fails to maximize use of future public facilities and services. While Petitioner Brooke’s arguments sounds theoretically correct, it is not supported by the evidence. The evidence shows that the potable water and wastewater service lines previously constructed under the Econ River are sized for capacity to serve the demands generated by the Plan Amendments, and that the plant capacity exists as well. Petitioner introduced no evidence that service capacity to meet the future demand generated by the Plan Amendments would reduce, or otherwise interfere with, the County’s ability to provide those services to development inside the USA. Moreover, the Plan Amendments dictate that the developer, rather than the County, will incur the costs of constructing connections to the existing potable water and wastewater lines. As to the transportation facilities, the impacted segments of Lake Pickett and Chuluota Road are currently deficient and included in the County’s long-range transportation plan for widening as “partnerhip projects,” meaning the County requires a partner to fund these future projects. Through the transportation funding agreements, the Plan Amendments will provide the funding partner the County needs to eliminate the current backlog on these roadways, as well as mitigate the projected impacts of the future development. The Plan Amendments do not fail to maximize use of future public facilities and services, which is primary urban sprawl indicator (VII). Petitioner Brooke next cites primary indicator (VIII), that the Plan Amendments “[a]llow 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.” § 163.3177(6)(a)9.a.(VIII), Fla. Stat. Petitioner introduced no evidence of increased costs associated with providing services to the development authorized by the Plan Amendments, with the exception of transportation. As previously discussed, the Plan Amendment actually reduces the County’s cost to provide transportation services to existing and committed developments through the planning horizon, and funds much of the cost to improve the impacted roadways to serve the new development. Petitioner did not prove the Plan Amendments trigger primary urban sprawl indicator (VIII). Next, Petitioner implicates section 163.3177(6)(a)9.a.(IX), that the Plan Amendments fail to provide a clear separation between rural and urban uses. On this primary indicator, Petitioner is correct. The Plan Amendment directs urban uses to a location surrounded by development recognized in the Comprehensive Plan as rural agricultural, rural residential, and conservation, or specified exceptions thereto. The Plan Amendments do trigger primary urban sprawl indicator (IX). Petitioner Brooke next argues the Plan Amendments constitute urban sprawl because they “discourage[] or inhibit[] infill development or redevelopment of existing neighborhoods and communities.” § 163.3177(6)(a)9.a.(X). Fla. Stat. As previously found, the Plan Amendments direct urban development to the RSA, which is contrary to an urban infill strategy. The Plan Amendments discourage infill by authorizing urban development outside of the designated urban area. The Plan Amendments do trigger primary urban sprawl indicator (X). Lastly, Petitioner Brooke alleges the Plan Amendments “result[] in poor accessibility among linked or related land uses.” § 163.3177(6)(a)9.a.(XII), Fla. Stat. Petitioner’s expert, Ms. Diettrich, opined that the proposed development is not sited adjacent to or continuing from any related use, thus fails to connect related uses. Based on that evidence alone, the undersigned was unable to find that the Plan Amendment triggers primary indicator (XII). Altogether, Petitioner proved the Plan Amendments trigger two primary indicators of urban sprawl. Once primary sprawl indicators are identified, the urban sprawl analysis shifts to whether the Plan Amendments meet four of eight criteria which determine that an amendment discourages urban sprawl. Respondent and Intervenors introduced testimony from their expert planner, Mr. Hall, that the Plan Amendments satisfy six of the criterion: (1) promote the efficient and cost- effective provision or extension of public infrastructure or services; (2) promote walkable and connected communities and provide for compact development and a mix of uses at densities and intensities that will support a range of housing choices and a multimodal transportation system; (3) promote the conservation of water and energy; (4) preserve agricultural areas and activities; (5) preserve open space and natural lands and provide for public open space and recreation needs; and (6) create a balance of land uses based upon demands of the residential population for the nonresidential needs of the area. Mr. Hall testified that the LPSA promotes efficient and cost-effective provision or extension of public infrastructure because the developer is paying, rather than the County. That arrangement is more cost-effective than taxpayer investment. Proposed policies 6.8.6, 6.8.12, and 6.8.13 require the neighborhoods within the LPSA to be designed as walkable and with interconnected greenspaces, trails, and paths. However, the LPSA does not promote a range of housing choices. Proposed policy 6.8.2 limits T3 to single-family detached housing, with some single-family attached housing limited to the perimeter and close to T4. Zone T4 allows single-family attached and “vertically-integrated uses,” which is undefined. Multifamily uses are prohibited. The proposed development does not promote a multimodal transportation system. The Department of Transportation reports there are “no transit service links adjacent to the project site,” and although “significant transit improvements are planned for the UCF/East Orange County area over the next six to 10 years,” funding for the projects had not been identified. The Plan Amendments do promote conservation of water and energy through the requirement in proposed FLUE Policy 6.8.4 that each community adhere to a “Green Infrastructure Plan” including a Master Stormwater Plan utilizing Low Impact Development (LID) practices, and a Master Conservation, Open Space and Community Space Plan identifying connections of the internal greenspaces to countywide trail systems. The Plan Amendments do require a substantial amount of open space and natural lands, and provide for public open space and recreation needs. Pursuant to proposed Policy 6.8.6, each community within the LPSA must provide 35 percent open space, no more than five percent of which may be community spaces.14/ Further, each neighborhood will be organized around a community focal point, such as a community park, garden, center, etc. Finally, the LPSA is designed with a mix of land uses to meet many of the demands of the residents in the area for nonresidential needs. Zone T4 areas will include commercial, office, service and civic uses to serve the communities, “as well as the surrounding area.” The LP Guiding Principles and Policies meet four of the criterion which determine that a plan amendment discourages urban sprawl. Petitioners did not prove that the Plan Amendments fail to discourage the proliferation of urban sprawl. Data and Analysis The next basis on which Petitioners challenge the Plan Amendments is supporting data and analysis. Section 163.3177(1)(f) requires all plan amendments to be “based on relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available on that particular subject at the time of adoption of the . . . plan amendment.” The statute continues, “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 adoption of the . . . plan amendment.” Id. The Individual Petitioners, with the exception of Petitioner Brooke, maintain that the Plan Amendments do not react appropriately to data and analysis regarding the impact of the Plan Amendments on natural resources and environmentally sensitive areas within the LPSA and the adjacent ESCA.15/ For purposes of this section, these Petitioners will be referred to as the “Farrell Petitioners.” Petitioner Brooke additionally maintains the Plan Amendments do not react appropriately to the community goals and vision codified by the USA/RSA concept. 1. Natural Resources On the issue of natural resources and environmentally sensitive areas, the Farrell Petitioners presented the testimony of Ariel Horner, who was accepted as an expert in Florida ecology and ecosystem conservation. Ms. Horner performed research in the ESCA during her undergraduate and graduate studies, and currently teaches courses in ecology and conservation utilizing the ESCA as a teaching tool. The Farrell Petitioners introduced photographs taken by Ms. Horner utilizing game cameras installed in the ESCA in March and April 2015, and February and March 2016. The photographs depict a number of “listed species,” including the Florida black bear, Sherman’s fox squirrel, gopher frogs, and ovenbirds. The pictures document the presence of endangered, threatened, or species of special concern, within the ESCA. Ms. Horner testified extensively regarding the habitat requirements for these species and expressed her expert opinion that these same species are very likely present on the LPSA property as well. Ms. Horner’s opinion regarding the habitat needs of the various listed species was informed, in part, by management plans prepared by the FWC. Petitioners did not introduce any FWC management plans into evidence and Ms. Horner did not use any excerpts or maps from said plans as demonstratives. The Farrell Petitioners also offered the testimony of Dr. John Fauth, accepted as an expert in conservation biology, vertebrate and invertebrate zoology, and statistical analysis. Dr. Fauth testified that the LPSA is located within a bio diversity hotspot, the North American Coastal Plain, which data that does not support development of the property for the density and intensity authorized by the Plan Amendments. The North American Coastal Plain extends from southeast Texas east to Florida and north along the east coast as far as coastal Connecticut and Massachusetts. Within the southeast, the plain includes the entirety of Louisiana and Mississippi, large portions of Alabama, Georgia, and North and South Carolina, Arkansas, and western Tennessee. The presence of the LPSA within this vast region was not persuasive evidence to support any specific development restriction on the particular parcel. Both Dr. Fauth’s and Ms. Horner’s expert opinions regarding the high ecological value of the LPSA, is due to its location within a regional wildlife corridor. Dr. Fauth testified extensively regarding the importance of maintaining corridors for listed species, such as the Florida panther and black bear, to travel from southern to northern Florida and further on to other areas within the North American Coastal Plain. The ability of species to migrate without barriers from human development is important to mating, feeding, reproduction, and many other essentials for long-term viability of various listed species. The Farrell Petitioners introduced, through the testimony of Dr. Fauth, a map from the St. Johns River WMD Management Plan for the ESCA. The map depicts the location of the ESCA within a “larger, multi-corridor system.” The map encompasses east Orange and Seminole, south Volusia, and western Brevard counties. The map depicts “District-Owned Conservation Easements,” “FNAI [Florida Natural Areas Inventory] Public Lands,” “Management Areas,” including managed preserves, state forests, and conservation areas; as well as, properties designated “Priority 1” through “Priority 5.” The map does not indicate what the priority properties are listed for and no witness testified to the meaning of the priority areas. Based on the totality of the evidence, the undersigned infers the properties are designated by priority for public acquisition. The LPSA lies within a corridor extending between the Hal Scott Regional Preserve in southeastern Orange County to the Little Big Econ State Forest north in Seminole County. Further east lie the Bronson State Forest and the Seminole Ranch Conservation Area, extensive “Management Areas” in the region. The scale of the map is large, and no witness testified as to the exact location of the LPSA on that particular map. Based upon the evidence of record, it appears the LPSA lies wholly within an area designated “Priority 1.” The LPSA is one of thousands, if not tens or hundreds of thousands, of Priority 1 properties within the corridor between the Hal Scott Regional Preserve and the Little Big Econ State Forest. No evidence of record supports a finding that development of the ESCA will prevent wildlife from traversing the larger corridor, or prevent the WMD from acquiring other properties or conservation easements that could, eventually, link the preservations areas. The St. Johns River WMD staff reviewed the proposed Plan Amendments “focused on flood protection and floodplain management, wetlands and other surface waters . . . as they relate to important state resources and facilities that will be adversely impacted by the amendment, if adopted,” and had no comments, other than to note that the property’s location in the Econ River Basin will require additional criteria to be met for issuance of environmental resource permits in the area. The Department of Environmental Protection reviewed the proposed Plan Amendments for “potential adverse impacts to important state resources and facilities” including “federal and state-owned lands and interest in lands, including state parks, greenways and trails, [and] conservation easements.” The Department found “no provision that, if adopted, would result in adverse impacts to important state resources subject to the Department’s jurisdiction.” The County has limited jurisdiction with regard to protection of wildlife; the protection of endangered, threatened, and species of special concern is within the authority of the state and federal government. Although the County was required to transmit the proposed Plan Amendments to the FWC for review, pursuant to section 163.3184(3)(b), no evidence was introduced regarding any comment from the FWC on the proposed Plan Amendments. The state agency with authority for regulating wildlife had no comment regarding the impact of the Plan Amendments on any state or regional resource, including the proposed corridor. Despite the County’s limited authority to regulate wildlife, the County environmental staff included the following in its staff report on the Plan Amendments in a section titled “Habitat Protection”: It appears that portions of the [property] have been identified as part of the Florida DEP, Priority Ecological Greenway Network 2013. This project of the Florida Ecological Greenway Network (FEGN) identifies areas of opportunity for protecting a statewide network or ecological hubs and linkages designed to maintain large landscape-scale ecological functions including focal species habitat and ecosystem services throughout the state. The FEGN aggregates various data identifying areas of ecological significance from the Florida Natural Areas Inventory, [FWC], existing and proposed conservation lands, and other relevant data. These data were combined to identify large, landscape-scale areas of ecological significance (ecological hubs), and a network of landscape linkages and corridors connecting the hubs into a statewide ecological greenways system (ecological greenways and wildlife corridors). Developing portions of this ecologically significant area without proper ecological design consideration would diminish the functionality of the area as a greenway and move the land use from a state of higher sustainability to a state of lower sustainability in terms of resources needed to sustain the lower state. The applicant shall provide reasonable assurances that the habitat and ecological function of this ecosystem will not be diminished as a result of the proposed development. Road and pedestrian crossings of wetland and environmentally sensitive corridors shall be minimized over wetlands and floodplains and be designed to allow for unimpeded passage of wildlife. (emphasis added). The text amendment addressed the issue of habitat and ecological function through the use of the transect planning. Objective 6.8, and Policies 6.8.1 and 6.8.2, dictate a development pattern that transitions from open space and conservation areas on the edges of the LPSA through gradually increasing densities of residential, to a center of highest density, intensity, and mix of uses. This approach minimizes disturbance of the “corridor” by concentrating the most intense uses to the center while maintaining relatively undisturbed edges. Petitioners maintain that the proposed development, as reflected in the PD-RP, does not provide reasonable assurances that the habitat and ecological function of the property will not be diminished, primarily because road and pedestrian crossings of wetland and environmentally sensitive areas, as planned, fragment habitat which does not allow for unimpeded passage of wildlife. Petitioners argument on this point is a challenge that the zoning (PD-RP) is inconsistent with the Plan Amendments as reflected in the text amendment. The exclusive method to challenge the consistency of the zoning (or any other land development order) with the Comprehensive Plan, is section 163.3215, which provides for an action in an appropriate circuit court. Petitioners argument is not cognizable in the instant proceeding. Furthermore, the Plan Amendments do not exempt the proposed development from the land development code, Article X, which governs the identification, classification, and corresponding protection of wetlands, during the development permitting process. Many of Petitioners’ concerns will be addressed in the permitting process for the proposed development. Likewise, the process triggering evaluation of the specific property for presence of listed species is the local permitting process. The developer’s preliminary environmental assessment confirmed the presence of several listed species on the subject property, including Sherman’s fox squirrel, Florida Sandhill Crane, Little Blue Heron, White Ibis, gopher tortoise, and bald eagle. The report identifies whether each species is state- or federal-listed, and details the corresponding development restrictions to be imposed during permitting. The LPSA lies within the Econ River Basin, and is subject to Article XI of the County’s land development code. Section 15-442 specifically requires all development applications to include a survey of listed species utilizing FWC Wildlife Methodology Guidelines. The code provides, “[a] management plan shall be required of the development for the protection of an endangered, threatened or species of special concern and shall become part of the conditions for approval of the project.” The data gathered from such surveys is generally good for about a 90-day period because of the relative transient nature of certain species. Listed-species surveys are performed during the permitting phase in order to base permitting decisions on “fresh” data. The Farrell Petitioners did not prove that the Plan Amendments do not react appropriately to the data concerning the location of the property within a larger wildlife ecosystem to the extent necessary during the planning process. The Farrell Petitioners next argue that the Plan Amendments do not react appropriately to the data regarding natural resources within the ESCA because the development proposed by the Plan Amendments will negatively impact the ESCA. Testimony on this issue pertained to increased use of the ESCA by adjoining residents in the proposed development, particularly with respect to planned additional horse trails, hiking and other passive recreation, as well as the introduction of pets, especially cats, which hunt and kill many wildlife species, especially birds. The testimony on this issue was part hearsay, part speculation and unpersuasive. Neither the state nor the local agency charged with managing the ESCA mentioned a concern with increased public usage when reviewing the Plan Amendments for impact on these resources. The Plan Amendments do not prohibit the managing entities from limiting, or otherwise regulating, the use of the ESCA to maintain its ecological integrity or from conducting public information and awareness campaigns. The Farrell Petitioners did not prove that the Plan Amendments fail to react appropriately to data regarding the natural resources present on the adjacent ECSA. Additionally, Petitioner Brooke argues the Plan Amendments do not react appropriately to data and analysis in the form of the community goals and vision established by the Comprehensive Plan USA/RSA concept. Brooke states that FLUE Goal 1 and its implementing objectives and policies establish the community’s “desired future development pattern” directing all urban densities and intensities to the USA. Thus, Brooke argues that the Plan Amendments, which direct urban densities and intensities of use to the RSA, do not react appropriately to the community goal and vision established by the Comprehensive Plan. Section 163.3177(1)(f) lists “community goals and vision” as a type of data, along with surveys, studies, and other data available at the time the plan amendment was adopted, on which the plan amendment must be based. The statute anticipates “community goals and vision” as something separate from, or other than, the comprehensive plan itself. Many communities have a free-standing vision statement which may, in part, inform future planning decisions. See Seminole Tribe of Fla. v. Hendry Co., Case No. 14-1441GM (DOAH Feb. 12, 2015). As such, the separate statement is a community vision or goal which may support a subsequent plan amendment. In this case, Petitioner Brooke has just repackaged an internal inconsistency argument as a data and analysis argument. Under the rubric of the Community Planning Act, the comprehensive plan must be based upon data and analysis that form the basis for crafting the goals, objectives, and policies of the plan. In order for that construct to make sense as the plan is amended going forward, plan amendments must be supported by data and analysis documented outside of the comprehensive plan itself. The comprehensive plan cannot constitute the supporting data and analysis for an amendment to itself.16/ While the undersigned applauds Petitioner Brooke’s creativity, the argument is not well-taken. The internal inconsistency argument was, however, both well-plead and well- proven. 2. Infrastructure and Services In both their Petition and PRO, the Farrell Petitioners raise the issue of whether the Plan Amendments react appropriately to data and analysis regarding the provision of infrastructure and services. However, their PRO fails to address this issue, focusing instead solely on the natural resources issue. It is unclear whether the Farrell Petitioners abandoned this claim, so it is addressed here in an abundance of caution. The Farrell Petitioners did not prove the Plan Amendments fail to react appropriately to data and analysis regarding the availability of infrastructure and services. The Plan Amendments require developer-funded connection to, and construction of onsite, wastewater and potable water services. The Plan Amendment is also contingent upon written infrastructure agreements to provide for public schools, emergency services, and parks and recreation services. Transportation impacts and funding of needed improvements are addressed through the transportation network agreements required by proposed FLUE Policies 6.9.3 and 6.9.4. No persuasive evidence supported a finding that these terms are not an appropriate reaction to data and analysis regarding the availability of infrastructure and services. Meaningful and Predictable Standards Finally, Petitioners challenge the Plan Amendments as contrary to section 163.3177(1), which requires comprehensive plans to establish “meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.” The Farrell Petitioners’ allegation in the pre- hearing stipulation is generalized: “[T]he Plan Amendments . . . eliminate existing meaningful and predictable guidelines for development.” In their PRO, the Farrell Petitioners allege the Plan Amendments “eliminate[] . . . existing meaningful maximum allowable density limitations and replace[] density with average densities that are much higher urban densities” exceeding the RSA cap of 1du/10acres but outside the USA, thereby failing to provide meaning and predictable standards. The Farrell Petitioners did not elaborate this argument. Contrary to Petitioners’ assertion, the use of non- specific densities with mixed-use transect-based urban development in the County is neither new nor novel. The most prominent example being Innovation Way, which establishes a range of densities within each transect zone, allowing the final density to be established by the IW-PD-RP. See FLUE Policy 5.1.7. In fact, the process for approving a plan amendment to IW is identical to the LPSA text amendment: The proposed location of transect zones are depicted on a CRP during the IW map amendment process. No development within the IW boundary may be approved without an approved IW-PD-RP, which determines the adopted boundaries and location of the transect zones. See FLUE Objective 5.2 and implementing policies. What is new and novel about the LPSA approach is the County’s position that the development pattern and densities are rural, rather than urban. The Farrell Petitioners did not introduce evidence regarding whether the LPSA amendment process itself provides meaningful and predictable standards for the use and development of land.17/ The allegation that the use of average densities renders the Plan Amendment devoid of meaningful and predictable standards was not proven. Petitioner Brooke maintains that the Plan Amendments do not provide meaningful and predictable standards because they are internally inconsistent with the goals, objectives, and policies directing urban densities and intensities of use outside the USA. Petitioner Brooke’s arguments are, again, creative, but yet another attempt to get the proverbial second, or in this case, third bite at the apple. Repackaging an internal inconsistency issue as a “meaningful and predictable standards” issue does not ipso facto make it an meaningful and predictable standards issue. The Petitioners did not prove that the Plan Amendments fail to provide meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.
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 Orange County Comprehensive Plan Amendments 2015-2-P-FLUE-1 and 2015-2-A-5-1, adopted by Ordinance 2016-17 on July 12, 2016, are not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 11th day of August, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2017.
The Issue The issue in these cases is whether the Collier County (County) Comprehensive Plan amendments adopted through Collier County Ordinance Number 02-32 ("the Rural Fringe Amendments" or "the Amendments") on June 19, 2002, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Background The Amendments at issue in these cases arose from a specific historical background which is relevant to help put them in context. In 1997, the County adopted Evaluation and Appraisal Report-based plan amendments ("EAR-based amendments"). DCA found the EAR-based amendments not to be "in compliance." Following an administrative hearing in which FWF and Audubon intervened, the Administration Commission entered a final order agreeing with DCA's determination. Joint Exhibit J.3. The Administration Commission’s final order, entered on June 22, 1999, directed the County to take the following steps in order to bring its comprehensive plan amendments into compliance: (1) rescind those EAR-based amendments found not in compliance; (2) adopt certain specific "remedial" amendments; (3) initiate an assessment of the area of the County designated on the Future Land Use Map ("FLUM") as Agricultural/Rural; (4) adopt interim amendments to remain in force during the course of the assessment; and (5) no later than June 22, 2002, adopt those plan amendments needed to implement the findings and results of the assessment. Summary of Rural Fringe Amendments In response to the Administration Commission's final order on the EAR-based amendments, the County elected to divide its Agricultural/Rural-designated area into two subdistricts-- Rural Fringe and Eastern Lands--for purposes of the assessment and implementing plan amendments. The Rural Fringe subdistrict was designated as "the Rural Fringe Mixed Used District" (or "the Rural Fringe"). The Rural Fringe is described in the amendments as follows: The Rural Fringe Mixed Use District is identified on the Future Land Use Map. This District consists of approximately 93,600 acres, or 7% of Collier County's total land area. Significant portions of this District are adjacent to the Urban area or to the semi-rural, rapidly developing, large-lot North Golden Gate Estates platted lands. * * * The Rural Fringe Mixed Used District provides a transition between the Urban and Estates Designated lands and between the Urban and Agricultural/Rural and Conservation designated lands farther to the east. The Rural Fringe Mixed Use District employs a balanced approach, including both regulations and incentives, to protect natural resources and private property rights, providing for large areas of open space, and allowing, in designated areas, appropriate types, density and intensity of development. The Rural Fringe Mixed Use District allows for a mixture of urban and rural levels of service, including limited extension of central water and sewer, schools, recreational facilities, commercial uses and essential services deemed necessary to serve the residents of the District. In order to preserve existing natural resources, including habitat for listed species, to retain a rural, pastoral, or park-like appearance from the major public rights-of-way within this area, and to protect private property rights, the following innovative planning and development techniques are required and/or encouraged within the District. J.4 at 50. Under the Amendments, the Rural Fringe was divided into areas designated as Sending, Receiving, or Neutral on the FLUM.18 J.5. Some Sending Areas are also designated Natural Resource Protection Areas (NRPAs). Receiving Lands "are those lands within the Rural Fringe Mixed Use District that have been identified as most appropriate for development . . . ." J.4. at 51. These lands have been chosen because they "have a lesser degree of environmental or listed species habitat value than areas designated as Sending and generally have been disturbed through development, or previous or existing agricultural operations." Id. Approximately 25,000 acres are designated Receiving Lands. Receiving Lands "are also located to allow for the provision of central water and sewer and have excellent access to the County's arterial road network." J.11. at 2. The base density within Receiving Lands is one dwelling unit per five acres. However, through the purchase of development rights from Sending Lands through the Transfer of Development Rights (TDR) program established by the Amendments (discussed in Findings 72-91, infra), Receiving Lands may increase density up to one dwelling unit per acre. Additional density may be obtained if a development preserves more than the minimum required amount of native vegetation. Limited commercial, industrial, and earth-mining uses are also allowed in Receiving Lands. Receiving Lands may also be developed as "Rural Villages." The Amendments provide for the possibility of one rural village within each of the four distinct Receiving Areas in the Rural Fringe. The purpose of rural villages is described as follows: Rural Villages may be approved within the boundaries of the Rural Fringe Mixed Use District in order to: maximize the preservation of natural areas and wildlife habitat within the Rural Fringe Mixed Use District; to reduce the need for residents of the District and surrounding lands to travel to the County's Urban area for work, recreation, shopping, and education; and, to enhance the provision of limited urban and rural levels of service through economies of scale. J.4 at 62. The rural villages permitted in the Rural Fringe must consist of compact neighborhoods with nearby neighborhood or village centers. The neighborhood or village centers are to include retail and office uses; public parks, squares, or greens; civic and government uses; and service facilities. J.4 at 63. Specific provision also is made for open space in and surrounding the rural village. J.4 at 63-64. In addition to the one-village-per-district limitation, the amendments impose the following additional locational criteria on a rural village: (1) it must be at least three miles from any other rural village; (2) it must have direct access to an arterial or collector road, or the developer must bear the cost of a new collector road directly accessing the village; and (3) it must be near already- existing or planned public infrastructure, such as water and sewer facilities. J.4 at 63. In addition, a rural village may only be approved if shown to be fiscally neutral to taxpayers outside the village. J.4 at 65. Neutral Lands "have been identified for limited semi-rural residential development" at a maximum density of one dwelling unit per five acres. J.4. at 55. Limited commercial, industrial, and earth-mining uses are also allowed in Neutral Lands. Approximately 7,000 acres have been designated as Neutral Lands. Sending Lands are those lands "that have the highest degree of environmental value" and "are the principal target for preservation and conservation." J.4. at 58. The residential use of this land is restricted to one dwelling unit per parcel which existed before June 22, 1999, or one unit per 40 acres, whichever yields the greatest density. Nonresidential uses of Sending Land, other than agriculture, are quite limited. There also are specific criteria for the protection of site-specific native vegetation, wildlife habitat, and wetlands. J.4 at 58-62; J.6 at 24, 27, and 29-30. Some of the land designated Sending is also subject to regulation as NRPA. The purpose of a NRPA designation "is to protect endangered or potentially endangered species and to identify large connected intact and relatively unfragmented habitat, which may be important for these listed species." J.4 at 79. Designation as a NRPA also limits the intensity and density of development in an area (J.4 at 58-61) and imposes specific restrictions for the preservation of native vegetation, wildlife habitat, and wetlands (J.6 at 24, 27, and 29). The principal additional effect of NRPA designation is to increase the requirement for the retention of native vegetation. In addition to the changes to the Future Land Use Element (FLUE), the Amendments also affected the Coastal and Conservation Element (CCE), Potable Water Sub-Element, and Sanitary Sewer Sub-Element. Standing of Petitioners and Intervenors The evidence was that the Husseys and Brown own property in Collier County and submitted comments regarding the Rural Fringe Amendments between the transmittal hearing and the adoption hearing. The parties stipulated to the standing of FWF, Audubon, Vision & Faith, and Section 20 Investments. There also was evidence that FWF and Audubon submitted comments regarding the Rural Fringe Amendments at both the transmittal hearing and the adoption hearing and that, at least as of June 14, 2000, they owned property or operated a business in Collier County and had members who reside in Collier County. Century is a for-profit corporation that has its principal place of business in Collier County. Century owns 12.5 acres of land in Collier County. According to the testimony of Donald Lester, President of both Century and Waterford Management, Inc., Century is a wholly-owned subsidiary of Century Holdings, a limited partnership. Waterford is Century Holdings' general partner. Waterford, Century, and approximately 300 other entities are limited partners of Century Holdings. All of these entities and the land they own are managed by Waterford. According to Lester, the various Waterford-managed entities are involved in real estate development and have spent $42 million (over $30 million in "land basis" and $7-8 million on professional fees and expenses) acquiring land for development in Collier County, including approximately $36 million for approximately 3,500 acres in North Belle Meade (NBM) in the Rural Fringe and approximately $6 million for another approximately 2,000 acres farther east in Collier County. There was no evidence that these lands have obtained any master development approval or are otherwise vested for development. Coalition is a not-for-profit corporation having its principal place of business in Collier County. Lester is its Executive Director. There was no evidence that Coalition itself owns property or conducts any type of business activity in Collier County, other than commenting on the Rural Fringe Amendments and participating in these administrative proceedings. Coalition is comprised of approximately 2,000 members. Of these members, approximately 300 are the various entities making up the Century Holdings partnership and managed by Waterford. A total of approximately 320-350 Coalition members own property approximately 3,500 acres in NBM; there was no evidence that the other approximately 1,650 members own property or conduct business in Collier County. An unspecified number of members own approximately 2,000 acres to the east of NBM in Collier County. According to Lester, some members voluntarily donate money to the Coalition; others have "been supporting the proceedings" in some unspecified manner. Lester testified at final hearing that he commented on the Rural Fringe Amendments on behalf of both Century and Coalition during the adoption hearing. He indicated that he filled out and submitted a "speaker card" in order to give his comments and that the card indicated that he was speaking on behalf of both Coalition and Century; but the card was not placed in evidence. The only other evidence on the subject consisted of the transcript of that hearing, which records Lester's introductory statement as follows: "I represent a director of 15,000 coalition. I represent landowners that own property within the TDR area." The transcript also reflects that Robert Diffenderfer commented and stated: "I represent the 15,000 coalition and literally thousands of individuals. . . . On behalf of coalition and the individuals, I have the list here. There are 4,000 plus of them." While the list was not placed in evidence, it can be inferred from Lester's testimony that it would have included Century and the other Coalition members owning land in Collier County. Petitioners' Challenges Petitioners' challenges to the Rural Fringe Amendments were narrowed during the course of this proceeding and now are essentially: (1) whether the County's delineation of Sending and Receiving Lands, especially within the NBM portion of the Rural Fringe, is based upon and reacts appropriately to the best available data19; and (2) whether the TDR Program is based upon and reacts appropriately to the best available data, in particular as to the feasibility of its operation.20 Delineation of Sending and Receiving Lands A. Data and Analysis The process of delineating Sending and Receiving Lands in the Rural Fringe was involved and complex. The County accumulated and considered a wide range of data in the process. Among the data sources used were: (1) the South Florida Water Management District's (SFWMD's) 1994/1995 Land Use/Land Cover map; (2) Natural Resources Conservation Service ("NRCS") soils survey data; (3) soils tables prepared by Florida soils scientist, Howard Yamataki; (4) the National Wetlands Inventory; (5) true-color aerial photographs provided by the County property appraiser's office; (6) the updated FWCC's "Closing the Gaps" Report; (7) FWCC's updated wildlife and wildlife habitat data, including its Florida panther and Florida black bear telemetry data and red-cockaded woodpecker colony data, as well as its updated strategic habitat data and Strategic Habitat Conservation Area (SHCA) maps; and (8) the 1999 U.S. Fish and Wildlife Service (USFWS) Multi- Species/Ecosystem Recovery Implementation Team (MERIT) data for South Florida, in particular pertaining to the Florida panther. The County also actively solicited updated data from property owners and other members of the public. These opportunities for public input included numerous publicly- noticed meetings and hearings before the Rural Fringe Advisory Committee (52 to 53 meetings), the Environmental Advisory Committee, the Planning Commission, and the Board of County Commissioners. At all of these meetings, the public was invited to submit information to the County. On two occasions, notification was mailed to each property owner in the Rural Fringe, alerting them of the County's consideration of the amendments and inviting their input. The County posted signs on the two main roads entering the Rural Fringe, notifying the public of the on-going evaluation of the Rural Fringe and providing a contact name and telephone number for those wanting further information. The County also solicited information from the public via the County web page. Members of the public did submit information, some of which resulted in adjustments to the designations ultimately adopted. For example, the County received data from both Audubon and the Collier County School Board regarding red-cockaded woodpecker (RCW) habitat in the northeast corner of NBM. Similarly, Brown submitted information regarding some of his land holdings in NBM that was used in the ultimate delineation of boundaries between Receiving and Sending. The Husseys also submitted data that was considered. While all information submitted by the public was considered, not all resulted in a change in designation. For example, the County received information regarding jurisdictional wetland determinations on four separate properties and reviewed that information in order to determine whether there was a consistent correlation between jurisdictional determinations and the wetlands land cover information obtained from SFWMD. No consistent correlation was found. In two instances, the jurisdictional wetlands were larger than the area shown as wetlands land cover; in the other two, they were smaller. Despite ample opportunity, the only information submitted to the County by the Husseys was a limerock mining exploration contract on some of their property; Coalition and Century did not make any information available to the County between the transmittal and adoption hearings.21 In its analysis of the data, the County recognized that they were collected during different time periods, ranging from the 1980s through 2001. The soils data from NRCS, for example, was developed in the early 1990's from Landsat satellite imagery from 1985-1989, while the panther telemetry data reflected field data through the end of 2001. SFWMD's data was generated based upon false color infrared aerial photography and reflected changes in land cover through 1995.22 At the time of adoption of the Amendments on June 19, 2002, SFWMD's land use/land cover data was the most recent publicly-available depiction of land uses and land cover in the Rural Fringe.23 Petitioners take the position that the NRCS Soils Survey data was the most accurate data available because it was "ground-truthed." But the NRCS data did not depict land use cover; and it was not proven that the NRCS data accurately and reliably depicted vegetative cover.24 Petitioners also criticized the County for not "ground-truthing" the SFWMD data despite having knowledge of inaccuracies in its depiction of jurisdictional wetlands. But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, "ground-truthing" would have required the collection of additional data, as Petitioners' own expert conceded. See Conclusion 105, infra. The Husseys also argued in their PRO that the NRCS soils survey data should have been used instead of the SFWMD land use and cover data to delineate wetlands because it was "ground-truthed." But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, the NRCS data does not purport to identify jurisdictional wetlands and should not be used as a proxy for the presence of jurisdictional wetlands due to drainage activities, particularly in NBM. The Husseys had a Lower Tamiami (Aquifer) Recharge/ Discharge map and a map of the County's Wellfield Protection Zones admitted in evidence and argued in their PRO that the County failed to consider these data in delineating Sending Lands and Receiving Lands. To the contrary, the only evidence was that these maps were considered by the County's environmental specialists. Moreover, there was no evidence that these data were in any way inconsistent with the delineation of Sending and Receiving Lands in the Rural Fringe. Having accepted the SFWMD land cover data as the most accurate indicator of land cover and land uses, the County "updated" Gaps Report maps of biodiversity hotspot areas (which were based upon 1980 satellite imaging) by removing areas shown on the more current SFWMD maps to have been cleared for agriculture by 1995 or 1996. Petitioners contended that "updating" the data in this manner made resulting data and analysis inaccurate and misleading by "masking" natural resource information. But those maps were intended to depict features on parts of the Rural Fringe not mapped as agricultural land use cover on SFWMD's land use cover maps. As such, these "updates" reflected the County’s reasonable determination that, while lands cleared for agricultural use can retain natural resource value, they generally have lower environmental and habitat value than uncleared wetland and forest. No evidence suggested that this judgment was unreasonable. The County's analysis resulted in sensible planning decisions that generally afforded undeveloped wetland or forested areas a higher level of protection than land that has been disturbed through agricultural clearing. Petitioners initially seemed to contend that the County failed to take into account changes in hydrology and wetland vegetative cover in NBM as a result of drainage canals and similar alterations. As the hearing progressed, however, it became clear that from the evidence that the County was aware of the changes in hydrology and vegetative cover in NBM and took those changes into account in its planning decisions. The best data and analysis available as of June 19, 2002, showed that NBM is utilized by both the Florida black bear and the Florida panther. The data and analysis indicate that both of these species make more use of areas to the east (the Florida Panther National Wildlife Refuge and largely undeveloped portions of Northern Golden Gates Estates) and south (the (South) Belle Meade NRPA and largely undeveloped portions of Southern Golden Gates Estates). However, both panther and black bear access NBM from those areas by crossing Everglades Boulevard to the east and Interstate 75 to the south. A significant population of black bear uses NBM. FWCC lists the Florida black bear as a threatened species. Areas mapped by FWCC as strategic habitat statewide would support approximately five populations of approximately 200 individual black bears. (By comparison, FWCC ideally would like to maintain enough strategic habitat to support ten populations of 200 individuals, in part to reduce adverse impacts from natural disasters and genetic problems from inbreeding.) FWCC lists the Florida panther as an endangered species. It is one of the most endangered large mammals in the United States. Only approximately 80 to perhaps 100 panthers are thought to exist in the wild, all in south Florida. The Florida panther faces extinction unless "aggressive action" is taken for its protection. Panthers require large areas of habitat to survive in the wild. Depending on habitat quality, individual males require a home range of 100-150, 200-250, or even as much as 400 square miles; females have a smaller home range of approximately 50-70 square miles. Notwithstanding its general goal of maintaining ten populations of 200 individuals, FWCC's realistic goal for the Florida panther is to maintain current panther habitat and population. The (South) Belle Meade NRPA is considered Priority 1 Panther Habitat by FWCC. Other Priority 1 and Priority 2 Panther Habitat exists farther to the southeast and east. While NBM is not as good for panther habitat, radio telemetry data show that panthers also use NBM. Telemetry data show that panther use of NBM has increased in the last ten years. This could be due in part to the introduction of a female Texas cougar as part of FWCC's breeding program. NBM is currently within the home range of at least one male Florida panther and the introduced female Texas cougar. (Other use is possible, as only about a third of the animals in the population are collared for telemetry.) The female denned and gave birth to three kittens in NBM in 1998. It is possible that panthers frequented NBM in the late 1990's in part because a ranch lessee on Brown property in Section 21 was operating a deer-feeding station there. Panther telemetry data seem to have decreased after Brown required his lessee to cease those operations. However, while panther may have returned to those feeding stations because of the deer being attracted, they first had to have been in the area to become aware of the deer being attracted. This indicates some panther use of NBM prior to establishment of the feeding station. FWCC and United States Fish and Wildlife Service data also indicated to the County that red-cockaded woodpecker (RCW) colonies existed in the old-growth forest areas that remain in the western part of NBM, nesting in cavities in these trees. There also were data that FWCC considered these lands to be RCW strategic habitat. To nest, RCWs need old-growth cavity trees in an area not overgrown with new growth. While there were data that drainage of land in NBM in the RCW strategic habitat area has resulted in invasion of melaleuca (a nuisance exotic species), RCW can continue to use the habitat and forage in and around the melaleuca unless the melaleuca blocks off the cavity tree. There were no data that RCW no longer use NBM due to melaleuca infestation. Much of the now-urbanized areas of Collier County once provided RCW habitat, but development has impaired the value of that land for RCW nesting and foraging. As with panther habitat, traditional RCW habitat has diminished under the current regulatory scheme, and additional protection is needed. The non-NRPA Sending Land in the western part of NBM is the last remaining viable RCW habitat that is not already in conservation status. In gathering and using data in the development of the Rural Fringe Amendments, the County was supported by various state agencies that informally reviewed and commented on the amendments. These agencies supported Collier's approach to the designation of Sending and Receiving Lands. It is found that the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data. Sending and Receiving Delineations in General Petitioners were most critical of the County's alleged exclusive use of the SFWMD vegetative and land use cover maps to delineate Sending Lands based on the presence of jurisdictional wetlands. But the evidence was clear that the County had no intention of designating Sending Lands solely on the basis of the presence of wetlands. See J.15 at 4 (identifying percentages of wetlands in each category, and showing that the County recognized there were wetlands in Receiving Lands and non-wetlands in Sending Lands). Petitioners' characterization of the County's effort was a gross oversimplification. It also was clear from the evidence that the County did not restrict its data and analysis to the SFWMD maps. Petitioners contended that the County ignored the actual boundary of natural features, such as wetlands, in delineating the boundaries of Sending and Receiving Lands. Instead, for planning purposes, the County attempted to delineate reasonably large, contiguous areas as Sending and Receiving Lands, rather than creating a "Swiss cheese pattern" of intermixed Sending and Receiving Lands, designating isolated pockets of Sending within a large Receiving Area, and vice versa. This made sense from a planning perspective, for a number of reasons, including: (1) it permitted concentration of infrastructure, reducing infrastructure costs; (2) it allowed greater opportunity for the protection of environmentally sensitive lands; (3) large, contiguous areas of habitat are necessary to support a viable population for some of the endangered species present in Collier County-- Florida panther, in particular; and (4) it prevented urban sprawl (in part because sufficient acreage must be available in order for higher density development feasible.) In some instances, the County chose to delineate the boundary between Sending and Receiving Lands with a straight, easily-defined line, rather than using the edge of some feature such as vegetative cover. This also made sense from a planning perspective. A straight boundary, such as a section line, is easier to administer and more easily communicated to the public than a natural feature like vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that, as a result of the combined effect of its planning approach, Sending Lands would include some areas neither particularly environmentally sensitive nor--apart from the land surrounding it--valuable habitat. Conversely, some relatively environmentally- sensitive lands would fall within a Receiving Land designation; however, it also recognized that these lands would remain subject to site-specific criteria imposed both by the County's Comprehensive Plan (e.g., amended CCE Policy 6.1.2 criteria for preservation of native vegetation and amended CCE Policy 6.2.3 criteria for protection of wetlands25) and by state and federal regulatory programs. It was not shown that these planning decisions lacked merit; at the very least, their merit is fairly debatable. NBM Delineations Distilled to its essence, the testimony of the natural resource experts called by Petitioners argued that the natural resource data and analysis available at the time of adoption did not justify distinguishing Sending, Receiving, and Neutral Lands in NBM. In other words, their position was that measures for protection of practically the entire NBM would be an appropriate response to the data and analysis on wetland and forest cover and habitat value for Florida panther, Florida black bear habitat, and RCW. But it also is at least fairly debatable that the County's inclusion of Receiving and Neutral Lands in NBM was an appropriate response to the totality of the data and analysis. The Rural Fringe Amendments themselves include the County's rationale for the North Belle Meade (NBM) Receiving designations. The Receiving Areas are generally located in the northern portion of NBM [North Belle Meade] Overlay and are generally contiguous to Golden Gate Estates. Two sections are directly to the south of the APAC Earth Mining Operation. The Receiving Area exhibits areas of less environmental sensitivity than other portions of the NBM Overlay, because of their proximity to Golden Gate Estates and prior clearing and disturbance to the land. Within the Receiving Area of the NBM Overlay, are located Sections 21, 28 and the west 1/4 of Sections 22 and 27, which have been largely assembled under one property ownership. These lands are located south of the existing APAC earth mining operation and have been largely impacted by agricultural operations. The location of Sections 21 and 28 is just to the south and west of Wilson Boulevard located in the southern portion of north Golden Gate Estates. Because an earth mining operation and asphalt plant uses have existed for many years in the area, and the surrounding lands in Sections 21, 28 and the western halves of Sections 22 and 27 are reported to contain Florida Department of Transportation grade rock for road construction, these uses are encouraged to remain and expand. J.4 at 76-77. Section 20 (just west of Section 21) also was designated as Receiving. The southwestern corner of NBM, consisting of Sections 26 (Range 2626), 29, 30, 31, and 32, and the eastern half of Section 36 (Range 26) was designated as non-NRPA Sending, along with the southern halves of Sections 13 and 14 in the northeast corner. The southeastern corner (consisting of the eastern 3/4 of Sections 22 and 27, along with Sections 23, 24, 25, 26, 34, 35, and 36) was designated as NRPA Sending. The northwest corner (Section 24, Range 26) was designated Neutral, as was the northern halves of Sections 13 and 14 in the northeast corner. The 15,552 acres in NBM are surrounded on the south by the South Belle Meade (SBM) NRPA across Interstate 75; on the east by largely undeveloped portions of Northern Golden Gate Estates (NGGE); on the north by a more developed portion of NGGE; and on the west by Urban Fringe future land use, which is sandwiched between NBM and more densely developed urban land use to the west. NGGE is the fastest-growing area of the County. It is part of a proposed sprawling, essentially single-use residential development. To date most actual development in NGGE has occurred in the western part of it, closer to more urban uses, and along Golden Gate Boulevard, which is the main east-west road in NGGE. Because the western part of NBM does not extend as far north as the eastern part, it is farther away from Golden Gate Boulevard and its development than the eastern part of NBM. In NBM, the SFWMD data showed practically all wetland cover with some upland forest interspersed in the six sections making up the southeast corner of NBM, as well as the next section to the southwest (Section 34). The section of land immediately to the north of Section 34 (Section 27) showed up as wetland cover over approximately the eastern half and agricultural use over approximately the western half of the section. The section north of 27 (Section 22) showed up as mostly wetland cover with some agricultural use in the northwest corner and some forested upland in the northeast corner. To the north of Section 22 was a section (number 15) with a mix of urban use, agriculture, wetland, and forested upland cover. Proceeding to the east, Section 14 showed up as mostly forested upland, and Section 13 in the northeast corner with mostly wetland cover with some agriculture. The opposite (far western) side of NBM was shown to have approximately eight sections of land with predominately forest land use cover, interspersed with some wetland and agricultural use. Down the center of NBM are four sections shown by the SFWMD data to have, from north to south: (1) predominately, earth mines and mine pit lakes (Section 16); (2) predominately agriculture (Section 21); (3) a mix of agricultural, forested upland, and wetland cover (Section 28); and (4) approximately half forested (the southwest half) and half wetland cover (the northeast half) (Section 33). Of importance for planning purpose, Wilson Boulevard intersects Golden Gate Boulevard and extends south to the edge of NBM at a point approximately 500 feet west of the northeast corner of Section 16. There are plans to extend Wilson Boulevard south into NBM 500 feet west of the eastern boundaries of Sections 16, 21, 28, and 33. Co-location of infrastructure within the right-of-way of the Wilson Boulevard extension would make sense from a planning standpoint. Allowing development to proceed elsewhere in NBM would exacerbate urban sprawl. It also would be possible to locate rural village North Belle Meade near the proposed Wilson Boulevard extension so that public infrastructure could be provided to both the rural village and the existing residents of NGGE. While Section 20 includes both cleared and uncleared areas, it abuts NGGE on the north and west and other Receiving Land on the east. For that reason, the County considered it to be appropriate for future development. Section 28 also includes a "mixed bag" of habitat features and agriculture. However, the remaining forested areas are less valuable as habitat because they are surrounded by agriculture. In addition, prior to the date of adoption, an application had been filed to allow mining in Sections 20 and 28, as well as in Sections 21 and 27. The permit authorizing this mining was issued in December 2002. Once land is disturbed by mining, it loses its value as panther habitat. Taking all of these factors into consideration, the County judged Section 28 to be more appropriately designated as Receiving. The designation of the western quarters of Sections 22 and 27 as Receiving resulted both from the mixture of disturbed and undisturbed property in those areas and from their location in relation to the planned extension of Wilson Boulevard. This proximity to a planned, future transportation corridor was an important factor in identifying areas appropriate for development. Initially, all of the western part of NBM was to be designated as non-NRPA Sending Lands because of the RCW data. But the County School Board and Audubon furnished additional data pertaining to the extreme northwest section (Section 24, Range 26), which resulted in the ultimate designation of the land as Neutral. Even apart from any environmental or habitat distinctions, there are other valid land use planning reasons for the County's Receiving designations. The proximity of the NBM Receiving Lands to the most populous portion of NGGE makes them appropriate for future, mixed-use development. (In contrast, the part of NGGE near the NBM NRPA is not as densely developed and is not growing as fast as the part immediately north of the NBM Receiving Area.) Since NGGE is a large, single-use residential development, residents are currently required to travel great distances for commercial and other services. By encouraging more compact, mixed-use development in the part of NBM immediately adjacent to the most populous part of NGGE, the County hopes to address this dearth of ancillary, commercial, and institutional uses for the present residents of NGGE, as well as the future residents of NBM. In addition, the NBM Receiving Area is located so as to facilitate an extension of sewer and water service along Golden Gate Boulevard and, from there, into NBM. Recognizing that, with updated data, some of these delineations may need adjustment, the County made specific provision in the amendments for owners of Sending and Neutral Lands to submit additional data in support of a change in designation. J.4 at 61. In summary, it is found that the County's delineations of Sending and Receiving Lands in the Rural Fringe, and in NBM in particular, were based on data and analysis--i.e., they reacted appropriately to the extensive data available to the County on the date of adoption--and accomplish the County's objectives, including protection of environmentally sensitive land and habitat, control of urban sprawl, and successful implementation of the TDR program, which required maintenance of an adequate ratio between Sending and Receiving Lands. See Findings 72-91, infra. At the very least, the delineations are fairly debatable; and the contentions of Coalition, Century, and the Husseys to the contrary are rejected. TDR Program The County recognized that the additional restrictions on much of the property within areas designated as Sending may have an effect on property values. As a consequence, the County included a transfer of development rights ("TDR") program in the Rural Fringe Amendments. The Amendments describe the purpose of the TDR program as follows: The primary purpose of the TDR process within the Rural Fringe Mixed Use District is to establish an equitable method of protecting and conserving the most valuable environmental lands, including large connected wetlands systems and significant areas of habitat for listed species, while allowing property owners of such lands to recoup lost value and development potential through an economically viable process of transferring such rights to other more suitable lands. Within the Rural Fringe Mixed Use District and within designated areas of the Agricultural/Rural Mixed Use District, residential density may be transferred from lands designated as Sending Lands to lands designated as Receiving on the Future Land Use Map, subject to [certain expressly delineated criteria] . . . . J.4 at 50-51. The County's TDR program is an innovative land planning technique that is intended to enhance the protection of environmentally sensitive areas, provide for cost-efficient delivery of public facilities and services, and prevent urban sprawl. J.4 at 50. It is designed to give property owners an incentive to protect their property from development while receiving a return in value through the sale of development rights. In so doing, it also serves as a land management technique to direct development from areas where it is not desired, while preserving the value of that area. TDR programs balance the protection of areas incompatible with development with the preservation of private property rights. They are also recognized as a development tool for overcoming urban sprawl. Through the TDR Program, the owners of Receiving- designated property may increase the allowable residential density on their property by purchasing or otherwise obtaining development credits transferred from property designated as Sending. Forty acres of property in Sending--while assigned an allowable density of only one residential unit--is worth eight development credits (one credit for each five acres). J.4 at 58. The specifics of the TDR program, including the process for the "sale" of development rights and the tracking of these transactions, are to be established by the County in its Land Development Regulations (LDRs) within one year. The specific dollar value of a TDR credit will ultimately be decided by the marketplace. Based on a study of land sales in Collier County, the County's expert, Dr. James Nicholas, concluded that a single credit would probably be worth approximately $18,500. Dr. Henry Fishkind, the expert called by Coalition and Century, agreed that this figure is supported by sales data in the area. For example, a property owner with 40 acres in a Sending area could build one residence on that property, or he could sell eight TDR credits to someone who plans to develop a more compact development in a Receiving Area. J.4 at 58-59. If the Sending Land owner elects the latter, he retains ownership of his property and may still utilize it for certain specifically identified purposes, including agriculture, passive parks, passive recreational uses, certain essential services, and oil extraction. J.4 at 60-61. A property owner with 40 acres in a Receiving area could build eight residences on that property without purchasing any development credits, or he could purchase 32 TDR credits and build 40 residences. Once he has obtained enough TDR credits to achieve this one-to-one density, he could further increase his residential density slightly by preserving more than the minimum required native vegetation on site. J.4 at 51. Dr. Nicholas warned that an excess supply of TDR credits, relative to the amount of Receiving Land available to receive those credits, would undermine the success of the TDR program. The ratio of Receiving Land to Sending Land is critical. Dr. Nicholas prefers a ratio of at least two acres of Receiving Land to each acre of Sending. This ratio is not achieved within the Rural Fringe. Rather, the ratio is approximately 1:1 (25,729 acres of Receiving to 23,720 acres of Sending). See J.15 at 4 (which lists the acreages within each category). Taking into consideration Sending Lands that are already developed, Dr. Nicholas testified that approximately 4,100 TDR credits would be generated from the Sending Lands. Approximately 6,100 credits could be absorbed in the Receiving areas, where densities of up to one unit per acre--an increase of four additional units--can be achieved through a purchase of TDR credits. J.4 at 51. In order to bolster the demand for TDR credits, the Rural Fringe Amendments include a number of other additional markets for credits. First, the amendments provide for a limited transfer of TDR credits outside of the Rural Fringe for two purposes: (1) in-fill in the Urban Area on parcels of 20 acres or less; and (2) transfer from areas within one mile of the Urban boundary into lands designated Urban Residential Fringe. J.4 at 34-35. These two options will create a market for approximately 1,000 additional TDR credits (250 as urban in-fill and 750 in the urban fringe.) In addition, the Amendments provide a market for TDR credits for the development of rural villages. See Findings 11-13, supra, for description of rural villages. Rural villages must be at least 300 acres in size, up to a maximum of 1,500 acres, with the exception that a rural village located south of the (South) Belle Meade NRPA, which is south of Interstate 75, may be as large as 2,500 acres. The minimum and maximum gross densities for a rural village outside NBM are two units per acre and three units per acre, respectively. J.4 at 63. Thus, a rural village outside NBM must include at least 600 residential units, but could have as many as 4,500 or 7,500, depending upon its location. For each TDR credit purchased for the development of a rural village, the purchaser receives one bonus, up to the minimum required density, and the minimum density can only be achieved through the combination of base density, TDR credits, and TDR bonuses. J.4 at 64. Additional density--up to the maximum of three units per acre--can be achieved through the purchase of more TDR credits, through the preservation of more native vegetation on site than the minimum required, and/or through the inclusion of affordable housing. J.4 at 64. Consequently, for a rural village of 1,500 acres outside NBM, the developer would need to build at least 3,000 dwellings (2 units per acre). Assuming that the rural village is surrounded by a 800-acre greenbelt,27 it would start with a base density of 460 units28 and would need to purchase 1,270 TDR credits in order to achieve his minimum density of two units per acre. The provisions applicable to the one rural village permitted in NBM differ slightly. There, the minimum gross density is 1.5 units per acre, of which at least 0.5 units per acre must be obtained through the purchase of TDRs. J.4 at Assuming the same 1,500-acre development with an 800-acre greenbelt as described above, the developer would need to acquire 1,790 units more than would be available through the combined base densities of the village itself and the greenbelt in order to achieve minimum density.29 Of these additional units, 750 would have to be obtained through the purchase of TDR credits. Recognizing that there will probably be no more than two or three rural villages developed, Dr. Nicholas estimated that rural villages will absorb between 4,000 and 7,500 TDR credits, with the greater probability that the absorption rate will be closer to the lower number. Thus, in combination with the other markets for TDR credits created by the amendments, Dr. Nicholas estimated that there will be a demand for approximately 11,100 credits, resulting in a more acceptable ratio of just under three units of demand to one unit of supply. In their PRO, the Husseys attempted to raise the specter that the Amendments create too large a market for TDR credits so as to trigger Dr. Nicholas' concerns that, in that situation, potential transfers would be frustrated because TDR prices would rise to levels making their use infeasible for potential users, including developers of rural villages. But the Husseys based their concerns on maximum potential absorption of TDR credits, raising the supposed ratio of TDR buyers to sellers to 7-to-1 (or even 8-to-1 by disregarding the Urban Fringe one-mile limitation described in Finding 82, supra). The greater weight of the evidence was that the realistic market for TDR credits will be much smaller than the maximum potential absorption rates. Taking the realistic market into account, the probable actual absorption ratio is not much more than 2-to-1, which is ideal according to Dr. Nicholas. It also should be noted that the Husseys' arguments run counter to the testimony of their own expert on the subject. Dr. Fishkind agreed with Dr. Nicholas that there will be a functioning market for TDR credits generated from the Sending Areas, that the County’s TDR program is economically feasible, and that the County has the capacity to administer it. In addition, the Amendments include specific provisions requiring the County to establish a process for evaluating the TDR program. J.4 at 62. The purpose of such monitoring will be to assess whether revisions, such as the addition of either more Sending or Receiving Land or a change in the value of TDR credits, are necessary to ensure the success of the program. In concept, the success of the TDR program in achieving the objectives of directing development away from some areas and toward others, while preserving value in the former, is at least fairly debatable. The program's actual success in achieving these objectives initially hinges upon whether the County has appropriately designated Receiving and Sending Lands. If necessary, changes can be made to improve the program and increase its chances of success.
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 the Collier County's Rural Fringe Amendments to be "in compliance." DONE AND ENTERED this 29th day of April, 2003, 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 29th day of April, 2003.
The Issue The issue in this case is whether amendments to the Palm Beach County (County) Comprehensive Plan (Plan) adopted by Ordinance Nos. 2004-34 through 2004-39, 2004-63 and 2004-64 (Amendments) to accommodate the County's development of a biotechnology research park on 1,900 acres known as the Mecca site are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Overview of the County's Pre-Scripps Plan The County's first Plan was adopted in 1980. Its 1989 Plan, the first adopted under the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (also known as the 1985 Growth Management Act, or GMA) built upon the strengths of the first Plan. In 1995, the County evaluated and appraised its 1989 Plan, completed an Evaluation and Appraisal Report (EAR), and subsequently adopted a substantially-amended EAR-based Plan. In 1999, the Plan again was amended by the addition of a Managed Growth Tier System (MGTS) as a new growth management tool.2 The County's Plan recognizes that development in the County has generally moved from eastern coastal areas to the west and from the southern part of the County to the north. Generally, the Plan has attempted to direct growth towards the eastern part of the County and to encourage infill and redevelopment in that part of the County. Redevelopment is underway in older areas, usually under the auspices of local governments. At the same time, the Plan now recognizes that another growth corridor is located along SR 7 and US 441. Even with the efforts to encourage infill and redevelopment in the eastern part of the County, growth pressures have led to 18,000 acres of new land use approvals in the County north of Lake Worth Boulevard in the last 10 years. The Future Land Use Element (FLUE) of the County's Plan contains County Directions, GOPs (i.e., Goals, Objectives, and Policies), the MGTS Map, and the Future Land Use Atlas. The County Directions "provide the basis for preparation of the [GOPs]." The GOPs "provide the framework for decisions that direct the location, pattern, character, interrelationships and timing of development, which ultimately affects the distribution of facilities and services to support it." The MGTS Map "defines distinct geographical areas within the County that currently either support or are anticipated to accommodate various types of development patterns and service delivery provisions that, together, allow for a diverse range of lifestyle choices, and livable, sustainable communities." The Atlas "graphically depicts the future distribution, general use and densities and intensities of [land use] within each tier." (FLUE Introduction, pp. 1-2) The County also routinely employs geographic-specific planning tools. The Plan creates at least 15 overlays to meet planning challenges for specific areas. It also recognizes 10 neighborhood plans. Optional sector planning for a large part of the Central-Western Communities of the County also is underway. The FLUE's County Directions include: Livable Communities (with "a balance of land uses and [other features]"); Growth Management (to "provide for sustainable urban, suburban, exurban and rural communities and lifestyle choices by: (a) directing . . . development that respects the characteristics of a particular geographic area; (b) ensuring smart growth . . . ; and (c) providing for facilities and services in a cost efficient timely manner"); Infill Development (to increase efficiency); Land Use Compatibility; Neighborhood Integrity; Economic Diversity and Prosperity (to promote the growth of industries that are high-wage and diversify the economic base); Housing Opportunity ("by providing an adequate distribution of very-low and low-income housing, Countywide"); Economic Activity Centers (to encourage manufacturing and other value-added activities); Level of Service Standards ("to accommodate an optimal level . . . needed as a result of growth"); Linear Open Space and Park Systems; Environmental Integrity (to "[e]ncourage restoration and protection of viable, native ecosystems and endangered and threatened wildlife by limiting the impacts of growth on those systems; direct incompatible growth away from them; encourage environmentally sound land use planning and development and recognize the carrying capacity and/or limits of stress upon these fragile areas"); Design; A Strong Sense of Community; and Externalities (placing "major negative" ones "away from neighborhoods"). (Id. at pp. 5-6) FLUE Goal 1 is to establish the MGTS. Objective 1.1 recognizes five geographic regions (tiers) of land with "distinctive physical development patterns with different needs for services to ensure a diversity of lifestyle choices": Urban/Suburban (land within the Urban Service Area (USA), generally along the east coast but also along the southeast shore of Lake Okeechobee in the extreme west of the County, having urban or suburban density and intensity and afforded urban levels of service); Exurban (land outside the USA and generally between the Urban and Rural Tiers, platted prior to the 1989 Plan and developed at densities greater than 1 dwelling unit per 5 acres (du/ac); Rural (land outside the USA and east of the Water Conservation Areas, Twenty Mile Bend, and the J.W. Corbett Wildlife Management Area (Corbet WMA), including large tracts of land, as well as lands platted prior to the 1989 Plan, that had a predominant density of 1 du/10 ac, but less than 1 du/5 ac, and afforded rural levels of service); Agricultural Reserve (primarily for agricultural use, reflecting the unique farmlands and wetlands within it, to be either preserved or developed only at low residential density); and Glades (all land west of the Water Conservation Areas, Twenty Mile Bend, and Corbett WMA, predominantly supporting large-scale agricultural operations, and afforded rural levels of service.) The five tiers are depicted graphically in Map LU 1.1, MGTS, of the Map Series. Conservation lands are also depicted on Map LU 1.1 but are not assigned to a tier. The Map also depicts the United Technologies (Pratt-Whitney) (UT) Overlay and the North County General Aviation Airport (North County Airport), neither one which appears from Map LU 1.1 to lie within a tier. The UT Overlay is in the north-central part of the County, sandwiched between Rural Tier on the north, east, and southeast and Conservation land, including Corbett WMA on the west and southwest, and roughly bisected by the Beeline Highway (Beeline), which runs diagonally through the overlay between its northwest and southeast extremes. The Airport lies farther to the southeast along the Beeline, essentially surrounded by Rural Tier land, except for relatively small pieces of Conservation land contiguous to it along its western boundary and at its southeast corner (the North County Airport Preserve.) Notwithstanding the possible appearance from the depictions on Map LU 1.1, the County has no general planning jurisdiction in any of the incorporated areas of the County.3 Map LU 2.1 depicts the three service areas to guide delivery of public services that are established under FLUE Goal 3. These are the Urban Service Area (USA), the Rural Service Area (RSA), and the Limited Urban Service Areas (LUSA). The USA essentially follows the boundaries of the Urban/Suburban Tier. The LUSA is relatively limited geographically and includes the Agricultural Reserve Tier, the UT Overlay, and the North County Airport (with contiguous Conservation lands). The rest of the County is in the RSA. The verbiage of Goal 3, its Objectives and Policies and other parts of the Plan, gives the impression that provision of services is fine-tuned to the character and needs of a particular locale. For example, Goal 3 is "to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost- effective manner, reflective of the quality of life associated with each respective Tier." But actually the Plan assigns countywide level-of-service standards (LOSS's) to seven of nine types of facilities. All urban services can be provided in all areas of the County except that County centralized water and sewer services cannot be provided in the RSA. While theoretically intended to be geographically limited, the main difference between the USA and the LUSA is that the LUSA is outside the USA. The Agricultural Reserve part of the LUSA is actually a westerly extension of the USA. The North County Airport part of the LUSA is surrounded by Rural Tier land; the UT part of the LUSA is surrounded by Rural Tier and Conservation lands, the same as the UT Overlay. The County has re-examined its policy decision not to provide centralized water and sewer services in the RSA because it has resulted in various municipalities and utilities special districts and perhaps private alternative providers extending services while the County excludes itself. The County has adopted plan amendments to change this to allow the County to provide such services and to exclude others. Those plan amendments are under administrative challenge at this time and are not yet in effect. The County has three priorities for extending services. One is to encourage development of basic industry to further the Economic Element. The County Plan's Economic Element is optional. It reflects a concerted effort to diversify the economy of the County by encouraging growth in cluster industries, including medical products. Taken together, the Plan reflects a desire to accommodate growth in the Urban/Suburban Tier, especially in the eastern part of the County. Many GOPs in the Plan promote and encourage infill and redevelopment. However, pressure to grow in other parts of the County are undeniable. It appears that, under the Plan, the County will be completely built-out within 30 years. The County's current Plan is detailed and complicated. Many other parts of it, some of which will be addressed later in this Recommended Order, also are implicated in some manner and in different degrees by the Amendments at issue. Scripps Florida In the early 1990s, a County study indicated concern about the three main elements of the local economy: tourism was low-paying; agriculture was low-paying and a declining sector; and construction and development would decline as the County built out. In 1998, a consulting firm (SRI) proposed an action plan for the County to develop economic clusters. The action plan addressed several industry clusters, including medical/pharmaceuticals. SRI recommended, among other things, attracting a biomedical park development, a satellite campus of a medical school, venture capital providers, and a medical research institute. Meanwhile, in the same general time frame, the State’s economic development arm, Enterprise Florida, Inc., targeted the biomedical industry for development in Florida. The Scripps Research Institute in La Jolla, California (Scripps), is the largest not-for-profit biotechnology research organization of its kind in the world. In 2003, Scripps decided to expand its operations. Florida Governor Bush, along with several Florida legislators, personally and through Enterprise Florida and OTTED, actively pursued Scripps to locate in Florida. During the same timeframe, the Federal Government made funds available to Florida under the Jobs and Growth Tax Relief Reconciliation Act of 2003, for the essential governmental service of improving economic opportunities available to the people of this state by attracting new or expanding businesses to, and retaining businesses in, the State. It was decided to use $310,000,000 of these funds in the pursuit of Scripps and hoped-for related economic and other benefits. By October 2003, Scripps agreed to negotiate expansion to Florida and chose Palm Beach County as its preferred location in the State. Also in October 2003, the Florida Legislature met in special session and, on November 3, 2003, enacted Chapter 2003-420, Laws of Florida, which created the Scripps Florida Funding Corporation to facilitate establishment and operation of a biomedical research institution for the purposes of enhancing education and research and promoting economic development and diversity. The Funding Corporation was required by the law to negotiate a contract with the Scripps Research Institute of La Jolla, California, for Scripps to establish a state-of-the-art biomedical research institution and campus in Florida. After disbursement of $300,000 to OTTED to cover staffing and administration expenses of the Funding Corporation, and upon execution of the contract with Scripps, the balance of the $310,000,000 was to be disbursed to the Funding Corporation subject to the terms of the contract. The Scripps Grant Agreement Scripps Florida and the County entered into a Grant Agreement on February 9, 2004, with a term of 30 years. In the Grant Agreement, the County agreed to pay for or provide: a 100-acre campus for Scripps Florida in the 1,919-acre site at Mecca Farms (Mecca), with a funding limitation of $60,000,000; the construction of initial temporary facilities for Scripps Florida at the Florida Atlantic University (FAU) campus in Jupiter, with a funding limitation of $12,000,000; the construction of permanent facilities for Scripps Florida at the Mecca site, with a funding limitation of $137,000,000; 400 adjacent acres for development of “related uses”; and applications for approvals for Scripps Florida to develop 2 million square feet at Mecca. The Grant Agreement’s definition of “related uses” was intended to be broad so that the County can open the 400 acres to computer research, telecommunications and other economic clusters if not enough pharmaceutical or life-science research firms are attracted. The Grant Agreement requires Scripps Florida to create or relocate at least 545 new jobs to the Mecca site; to strive to create 2,777 new or relocated jobs; and to work with the County to create a total 6,500 jobs. In the Grant Agreement, the County expressly reserves all legislative and quasi-judicial powers, acting only in its proprietary capacity. The County's Purchase of Mecca Site In accordance with the Grant Agreement, the County proceeded with the purchase of the Mecca site. In October 2003, the Business Development Board (BDB), a non- profit organization that is funded primarily by and reports to the County, already had obtained an option to purchase the site for $60,000,000, if certain government approvals could be obtained. In February 2004, the County acquired the option on the Mecca property from the BDB and exercised it. Including the cost of some "oral add-ons," the purchase price for Mecca was approximately $60,500,000. Characteristics of the Mecca and Surroundings The Mecca site is in the shape of a rectangle located in the north-central part of the County. It is designated in the Rural Tier. For approximately 50 years, most of the site has been used as a citrus grove with trees grown in rows 15 feet apart, 73-acres of agricultural ditches, and a 272-acre above-ground water impoundment area in the northeast quadrant of the site used for irrigation. There also is a 30-acre sand mine operation in the southwestern quadrant. At this time, the Mecca site is accessible by road only by Seminole Pratt-Whitney Road (SPW), a two-lane paved road from the south. When SPW reaches the southwest corner of Mecca, it becomes a dirt road as it continues along the west side of the property. While Mecca itself is in the Rural Tier, it is not surrounded by Rural Tier land. The land to the west is designated Conservation, and the land to the north and south is designated Exurban Tier. The land to the east is designated Rural Tier, but it actually is within the jurisdictional boundaries of the City of Palm Beach Gardens. The area around Mecca is a “mosaic” of uses, including undeveloped agricultural lands, conservation lands, and lands developed predominantly as undesirable residential sprawl with limited employment and shopping. The nearby Beeline, part of the Florida Intrastate Highway System (FIHS), is classified by the State as “urban” to the east and “transitional” to the west of SPW. Significant among the developed areas near Mecca is The Acreage, abutting Mecca to the south. The County designated The Acreage as part of the Exurban Tier. It is a large, 76 percent built-out, antiquated subdivision with a density of 1 du/1.25 ac and a population of approximately 42,000. As such, it can be characterized as either urban or suburban, but not rural. To the south and west of The Acreage are large citrus groves in the Rural Tier. Farther south and west of The Acreage is Loxahatchee Groves, another antiquated subdivision in the Exurban Tier, with a density of 1 du/5 ac that is just 18 percent built-ut with 1,216 homes built. Farther south, just south of Southern Boulevard, is the Village of Wellington, which is a municipality located within the boundaries of the Urban/Suburban Tier. South and east of The Acreage is the Village of Royal Palm Beach, also a municipality within the Urban/Suburban Tier. The 60,288-acre Corbett WMA is located immediately west of Mecca and is owned and managed by the State as a hunting preserve. It has no tier designation. Corbett has a variety of habitats for endangered or threatened species (wood storks, eagles, red-cockaded woodpeckers, gopher tortoises and indigo snakes), including wet prairie, freshwater marsh and pine flatwoods. Corbett could provide habitat for Florida panthers although there have been no confirmed panther sightings in the area in a number of years. Immediately north of Mecca is another antiquated subdivision, Unit 11 of the Indian Trail Improvement District (Unit 11). The County is buying Unit 11 for preservation as Hungryland Slough, a regional off-site mitigation area. Unit 11 is designated in the Exurban Tier. Hungryland contains habitat similar to that found in Corbett WMA. North of Hungryland, and south of the Beeline, is a small triangle of Rural Tier land, which is just south and south east of the UT Overlay, which includes the Park of Commerce (a/k/a Florida Research Park). The Rural Tier land to the northeast of Hungryland, across the Beeline, is Caloosa, a large-lot residential development with a density of 1 du/5 ac. To the northeast of Caloosa is Jupiter Farms, another large, 81 percent built-out antiquated residential subdivision with a density of 1 du/2 ac and a population of about 12,600. Jupiter Farms is designated in the Rural Tier although it also seems to fit the criteria for the Exurban Tier. The Vavrus Ranch, a 4,600-acre landholding, is located immediately east of Mecca. Approximately half of Vavrus Ranch is wetlands, and the remainder is improved pasture. The Vavrus Ranch appears to be designated in the Rural Tier, but it actually is in the City of Palm Beach Gardens. Existing urban-scale public facilities between Mecca and Southern Boulevard to serve the suburbs include five fire stations, two post offices, eight elementary schools, two middle schools and two branch libraries, with one high school and one middle school planned or under construction. Existing public facilities north of Mecca in Caloosa include one fire station and one elementary school. East of Mecca and the Vavrus Ranch is the North County General Aviation Airport. To address land use deficiencies in this area, the County has agreed with DCA to prepare a plan for a 52,000-acre sector, which originally included Mecca. Current development has committed approximately two- thirds of lands in the sector to an inefficient pattern that is not “sustainable.” This pattern increases reliance on the automobile; may not be served long-term by private wells and septic tanks; and does not pay for itself, requiring substantial taxpayer subsidies. The sector has a serious jobs/housing imbalance, resulting in more congestion and longer commutes for residents. The County’s sector planning consultants identified Mecca as an appropriate site for an intensive employment center in two out of three initial scenarios. Subsequent studies identified Mecca for other uses, and the site was deleted from the sector planning area in 2004 when the Scripps Florida opportunity arose at Mecca. Development of Regional Impact (DRI) and Plan Amendments Since the Scripps opportunity arose, the County's primary vision for Mecca has been to transform its 1,919 acres into a very special place that would be able not only to satisfy the needs of Scripps, but also would have all of the essential elements and many extra amenities so as to enable the County to compete with other areas of the country (and, indeed, the world) to attract related research and development (R&D) and, especially commercial activity in order to reap the maximum possible economic benefits of a biotechnology cluster. This vision included not only onsite opportunities for development of related biotechnology R&D and related commercial ventures, but also a university campus, a hospital/clinic, expansive green spaces and water features, onsite residential opportunities, including affordable housing, and onsite commercial and retail uses, including a town center. The County prepared plans by first reviewing and considering other R&D complexes, companies potentially interested in new locations, views of university officials, the Scripps experience at La Jolla, employees per square foot per industry type, and its own allowable floor area ratios (FARs) in order to identify the developable square footage for R&D at Mecca. As applicant for the necessary DRI approval and Plan amendments, the County’s staff and consultants initially requested approval of 10.5 million square feet for R&D use after balancing space needs, traffic impacts, environmental needs, buffering and other factors. The County’s real estate consultant concluded that a minimum of 2 to 3 million square feet of R&D space would be necessary for the venture to be successful, and that the absorption of 8 to 8.5 million square feet over a long-term build-out period of 30 years was a reasonable expectation. That view was bolstered by the potential establishment of other R&D users, if biotechnology firms do not absorb the entire capacity of the project. Ultimately, the Board of County Commissioners (BCC) approved a development of regional impact (DRI) for 8 to 8.5 million square feet of R&D, including the 2 million square feet for Scripps Florida, in order to provide economic opportunities while avoiding the need for eight-lane roads in the area. In order to accommodate this project, amendments to the County's Plan were necessary. Changes to the Plan adopted October 13, 2004, included Ordinance Nos. 2004-34 through 2004-39. Changes to the Plan adopted December 14, 2004, included Ordinance Nos. 2004-63 and 2004-64. Ordinance No. 2004-34 removes the 1,919-acre Mecca site from the Rural Tier; creates a scientific community overlay (SCO) on Mecca; establishes its allowed uses; imposes controls to balance residential and non-residential uses by phase; sets design principles; designates Mecca as a LUSA; and makes related changes to the FLUE and Economic Element and the FLUE Map Series. Ordinance No. 2004-35 modifies FLUE Policy 3.5-d to exempt the SCO from a County-imposed limitation on allowed land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. Ordinance No. 2004-36 amends the FLUE Atlas to change the land use on Mecca from Rural Residential with a density of 1 du/10 ac (RR-10) to Economic Development Center with an underlying density of 2 du/ac (EDC/2). This amendment also sets minimum and maximum amounts of each use and incorporates by reference the land use conversion matrix in the DRI development order (DO). Ordinance No. 2004-37 amends the FLUE Atlas to change the land use on a 28-acre Accessory Site obtained from Corbett WMA from Conservation to Transportation and Utilities Facilities. Ordinance No. 2004-38 amends the Transportation Element (TE) to lower the adopted LOSS on 37 road segments and 6 intersections from the generally applicable standard of “D” to “Constrained Roadway at Lower Level of Service” (CRALLS). Ordinance No. 2004-39 amends the Thoroughfare Right- of-Way (ROW) Identification Map (TIM) and the 2020 Roadway System Map to reflect certain road improvements to accommodate SCO-generated traffic. Ordinance No. 2004-63 updates Tables 1 through 16 of the 2005-2010 Capital Improvement Schedule (CIS), and includes road, water, and sewer facilities to serve the SCO. Ordinance No. 2004-64 updates Table 17 of the CIS, which addresses schools. g. The Petitioners, Their Burden, and Their Issues DCA’s notices of intent to find the Amendments in compliance were challenged by four not-for-profit organizations and one resident of Palm Beach County. All of the Petitioners timely commented, orally or in writing, to the County regarding the Amendments. Additional standing evidence was presented as to each Petitioner. Standing as an "affected person" under Section 163.3184(1)(a) was disputed as to all but one Petitioner. As to Petitioner, Maria Wise-Miller, it was undisputed that she is an "affected person" under Section 163.3184(1)(a). It was Petitioners' burden to prove beyond fair debate that the Plan Amendments were not "in compliance." See Conclusions 210-211, infra. Essentially, Petitioners are concerned that development of the SCO on Mecca's 1,919 acres is poor planning because of its present agricultural use, its location in relation to nearby natural areas and rural areas, and its distance from more urban areas and transportation facilities. More specifically, the issues raised by Petitioners as reasons why the Plan Amendments are not "in compliance" are framed in their Amended Petition.4 Implicating numerous applicable statutory and rule provisions, Petitioners' issues involve: urban sprawl; capital improvements (infrastructure); transportation concurrency; data and analysis; internal consistency; natural resources; community character and compatibility with adjacent uses; the Treasure Coast Regional Planning Council (TCRPC's) Strategic Regional Policy Plan (SRPP); and State Comprehensive Plan (SCP). No other issues have been added by further amendment, and no additional issues were heard by consent of the parties. See Conclusion 212, infra. H. Urban Sprawl Whether the Plan Amendments are consistent with relevant provisions of the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources, is determined by application of Rule 9J-5.006(5).5 Exceedingly detailed and complex, Rule 9J-5.006(5) provides in pertinent part: (d) Paragraph (5)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl. * * * Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in the loss of significant amounts of functional open space. Evaluation of land uses. The comprehensive plan must be reviewed in its entirety to make the determinations in (5)(g) above. Plan amendments must be reviewed individually and for their impact on the remainder of the plan. However, in either case, a land use analysis will be the focus of the review and constitute the primary factor for making the determinations. Land use types cumulatively (within the entire jurisdiction and areas less than the entire jurisdiction, and in proximate areas outside the jurisdiction) will be evaluated based on density, intensity, distribution and functional relationship, including an analysis of the distribution of urban and rural land uses. Each land use type will be evaluated based on: Extent. Location. Distribution. Density. Intensity. Compatibility. Suitability. Functional relationship. Land use combinations. Demonstrated need over the planning period. Local conditions. Each of the land use factors in (5)(h) above will be evaluated within the context of features and characteristics unique to each locality. These include: Size of developable area. Projected growth rate (including population, commerce, industry, and agriculture). Projected growth amounts (acres per land use category). Facility availability (existing and committed). Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy. Extra-jurisdictional and regional growth characteristics. Transportation networks and use characteristics (existing and committed). Geography, topography and various natural features of the jurisdiction. Development controls. Development controls in the comprehensive plan may affect the determinations in (5)(g) above. The following development controls, to the extent they are included in the comprehensive plan, will be evaluated to determine how they discourage urban sprawl: Open space requirements. Development clustering requirements. Other planning strategies, including the establishment of minimum development density and intensity, affecting the pattern and character of development. Phasing of urban land use types, densities, intensities, extent, locations, and distribution over time, as measured through the permitted changes in land use within each urban land use category in the plan, and the timing and location of those changes. Land use locational criteria related to the existing development pattern, natural resources and facilities and services. Infrastructure extension controls, and infrastructure maximization requirements and incentives. Allocation of the costs of future development based on the benefits received. The extent to which new development pays for itself. Transfer of development rights. Purchase of development rights. Planned unit development requirements. Traditional neighborhood developments. Land use functional relationship linkages and mixed land uses. Jobs-to-housing balance requirements. Policies specifying the circumstances under which future amendments could designate new lands for the urbanizing area. Provision for new towns, rural villages or rural activity centers. Effective functional buffering requirements. Restriction on expansion of urban areas. Planning strategies and incentives which promote the continuation of productive agricultural areas and the protection of environmentally sensitive lands. Urban service areas. Urban growth boundaries. Access management controls. Evaluation of factors. Each of the land use types and land use combinations analyzed in paragraph (5)(h) above will be evaluated within the context of the features and characteristics of the locality, individually and together (as appropriate), as listed in paragraph (5)(i). If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. Innovative and flexible planning and development strategies. Notwithstanding and as a means of addressing any provisions contained in Rules 9J-5.006(3)(b)8., 9J- 5.011(2)(b)3., 9J-5.003(140), F.A.C., and this subsection, the Department encourages innovative and flexible planning and development strategies and creative land use planning techniques in local plans. Planning strategies and techniques such as urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions, mixed-use development and sector planning that allow the conversion of rural and agricultural lands to other uses while protecting environmentally sensitive areas, maintaining the economic viability of agricultural and other predominantly rural land uses, and providing for the cost- efficient delivery of public facilities and services, will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Of the 13 urban sprawl indicators in Rule 9J- 5.006(5)(g), Petitioners alleged the existence of only 2, 4, 6, 7, 8, 9, and 10. While there was evidence from which Petitioners reasonably could argue that the Plan Amendments promote urban sprawl, all of the Rule's indicators are at least fairly debatable. Indicator 2 As to Indicator 2, Petitioners' arguments on urban sprawl hinge in large part on characterization of Mecca as being rural land in the midst of likewise rural and conservation land far distant from any land use that could be characterized as urban or suburban. But while Mecca is distant from most of the Urban/Suburban Tier, neither the Village of Wellington nor Royal Palm Beach, both in the Urban/Suburban Tier, is very far away. The Acreage to Mecca's south, moreover, can be characterized as either urbanizing or suburban, but not rural. To the extent that Mecca is separated from other urban or suburban uses to the east by conservation lands (namely, the Loxahatchee Slough and Grassy Waters Preserve, a/k/a the West Palm Beach Water Catchment Area), no urban, suburban or even rural development of those conservation lands should be expected, making it fairly debatable whether "leaping over" those undeveloped lands should be considered an indicator of sprawl. In that sense, those conservation lands are similar to bodies of water. The “patchwork” pattern of developed, rural, and conservation uses near Mecca, including the adjacency of extensive residential development in The Acreage, also is significant. Nearby subdivisions including Jupiter Farms and Caloosa add further context for the sprawl analysis. The multi-use development at the SCO allowed by the Amendments may remediate the existing sprawl pattern near Mecca. Indicator 4 As to Indicator 4, it is at least fairly debatable whether conversion of rural land to urban uses on Mecca is premature in light of the Scripps opportunity and existing development pressures in the area. According to expert planning testimony for DCA and the County, the County is obliged to plan for growth in accordance with GMA and Rule 9J-5 up to its "sustainable carrying capacity," which has not been reached. Whether or not they believe the County has the option to plan to slow or stop growth before reaching "sustainable carrying capacity," it is clear from the evidence that the County is not doing so, but instead is planning for continued growth within the framework of its Plan until reaching what it considers to be "build-out" conditions. Given the County's basic growth policy, the County’s analysis of population projections for the next 20 years, compared to available vacant lands planned for residential use, shows the County has a “tight” plan with a restricted supply of land for development. This land use needs analysis shows that the eastern half of Palm Beach County (which includes Mecca) is experiencing intensive growth pressures due to the restricted supply of developable land, and that it will likely build out in approximately 20 years. Conservative assumptions in the County’s analysis suggest build-out in this area could occur even sooner. In its 1997 EAR, the County also concluded that eastern Palm Beach County would build out in approximately 20 years. The report noted that the approaching build-out of Dade and Broward counties to the south in the near future would further exacerbate growth pressures in Palm Beach County. Industrial lands in eastern Palm Beach County are expected to be exhausted by 2026. Because communities typically need greater locational variety for industrial uses compared to other uses, and in light of the many different activities that constitute an industrial use, the amount of land in eastern Palm Beach County designated for industrial use may be adequate but is not excessive. Besides, a numeric analysis is not necessary to justify industrial uses since they may be goal-based and aspirational. Seeking to diversify the local economy is an appropriate goal to support additional industrial land. Having a committed end-user for an industrial site is appropriate data to consider in evaluating such a land use change. Onsite residential and commercial uses will support the industrial use and better achieve a balance of uses, which will relieve the necessity to be evaluated against a numeric need test. Likelihood of Economic Benefits Petitioners argue that the proposed development at Mecca is not needed because significant economic benefits are so unlikely that the costly planned use of Mecca's 1,919 acres cannot be justified. Ordinarily, the likelihood of success of planned land uses would not be relevant to the compliance of a comprehensive plan or plan amendment. In this case, however, the County's vision for a Scripps-anchored biotechnology cluster at Mecca was the impetus for the major and important changes embodied in the Plan Amendments and is part of the demonstration of need. For that reason, consideration of the issue is appropriate in this case. The evidence is clear that the County's vision is not guaranteed success as planned and that there are significant risks involved. To maximize economic benefits, the County will have to not only attract R&D but also generate commercial spin-offs, where maximum economic benefits result. R&D requires research funding, and commercial spin-offs require venture capital. It also is essential to establish relationships with hospitals or clinics where clinical trials can take place. The predominant source of biotech research funding has been the National Institutes of Health (NIH). In the mid- 1990s, NIH funding increased dramatically, but significant increases in the coming years cannot be counted on, and other sources of research funding will have to replace the deficit. To the extent that pharmaceutical companies are resorted to for this purpose, they may require participation in any resulting commercialization, which could reduce local economic benefits if the funding source is not local. The evidence was that, over the last 30 years or so, significant economic benefits from biotechnology clusters achieving effective commercialization have been concentrated in just nine areas of the country. One is San Diego, California; none are in Florida. These nine areas also have garnered a disproportionate share of NIH research funding (although the percentage has declined a little in the last few years.) They also tend to have scientists inclined towards commercialization of the results of research and businessmen having the special abilities needed in the unique world of biotech, where years can pass before a business begins to see profits, and many start-ups fail. These nine areas also have access to venture capital, a good percentage of which has tended to be local, since many venture capitalists also want to be more active in monitoring and participating in the businesses they fund than most other investors. On the other hand, there was evidence acknowledging that at least some venture capital will seek out and follow good opportunities for profit wherever they may exist. Historically, at least through 2001, the biotech industry has become increasingly concentrated in these nine areas of the country, and they continue to have competitive advantages that the County's vision for the SCO would have to overcome. (On the other hand, several of these nine areas also have competitive disadvantage in the form of high taxes, high real estate costs, high cost-of-living, and less-than- ideal quality of life. So far, however, their advantages have surpassed their disadvantages.) There also is competition from many other cities and counties throughout the country desiring, like Florida and the County, to develop a biotechnology cluster. Recognizing the intense competition, the County's vision is to create a world-class setting for its effort at Mecca. Allowable facilities at the SCO include not just R&D space, but also a clinical hospital of up to 300 beds, a university campus of up to 2,000 college and university students, public facilities supporting environmental amenities, community facilities and retail facilities in a “town center,” and 2,000 or more housing units, including affordable housing. The SCO contemplates a mixture of uses that is hoped will lead to synergistic relationships and exchange of “tacit knowledge,” which are important to the success of a biotechnology cluster. Scripps Florida, as the anchor institution, will bring critical world renown and credibility. The principles of adjacency within the SCO are intended to promote synergy that transcends local competition and attracts regional and national users. In planning the SCO, Scripps’ experience in La Jolla and the views of Scripps officials were taken into account. Scripps’ campus at Torrey Pines Mesa has been in existence for almost 30 years, and has worked well. Scripps attempts to keep its buildings close to one another and has met with difficulty finding scientists willing to fill workspace four miles from the main Scripps campus. The FAR for the 500 acres of R&D use at the SCO is very low, at 0.39.6 By comparison, there was evidence that the FAR of the 900-acre University of Florida campus in Gainesville, Florida, is 2.00. Petitioners contend that much less than 500 acres is needed for the 8.5 million square feet of R&D provided in the SCO. However, the County found that Scripps’ buildings in California are constructed in horizontal fashion, with three, four and rarely five stories. Taller buildings have lower net-to-gross floor area, so they have significant added cost. Scripps considers close-by affordable housing desirable, especially for graduate and post-doctoral students. For other occupants of the SCO, low-rise construction makes it easier for companies to add space as they grow. High-rise construction is more expensive, harder to finance because of pre-leasing requirements, and less efficient. Based on the evidence, the FAR is fairly debatable. Venture capital from within and outside Florida is growing, as is capital interest in the Scripps initiative in Florida. Four clinical hospitals have expressed interest in participating in the SCO. In the year after announcement of Scripps Florida, the number of new life-science projects announced in Florida quadrupled in comparison to recent years. Workforce training and educational improvement are contemplated as support for and results of the SCO. The State has implemented and funded workforce programs in the life sciences, including in the County. The County has participated in the development of a consortium of Florida institutions of higher learning aimed at creating a specialized campus in the SCO. Scripps Florida is obligated to establish accredited science degree programs and internship programs for educators and secondary, post- secondary, graduate and post-doctoral students. Petitioners’ economic witness testified that the County lacks key competitive ingredients for developing a successful biotechnology cluster. Other witnesses, however, explained the level of efforts that the State, the County, and Scripps Florida are making to bring those ingredients to fruition. In addition, while Petitioners’ economic witness recited past experience of the biotechnology industry and forecast limited success for Scripps Florida primarily based on year seven, the last year of presently-committed State funding, he acknowledged that biotechnology research parks tend to experience a slow ramp-up, and the County anticipates a 30-year build-out. Of course, other sources of needed funding would have to be found after year seven. The evidence was that the chances for successful development of a biotechnology cluster at Mecca will decrease if no universities or hospitals are established onsite at Mecca and will decrease the longer it takes to establish them. If the planned biotechnology cluster does not succeed as well as planned, the SCO incorporates flexibility for absorption of R&D floor space by other types of research and development occupants. Often, when a large development project does not succeed as planned, pressures develop for investors to change the project's characteristics in an attempt to cut losses and increase profitability by selling land more quickly. In the case of the SCO, the investors are the taxpayers of Palm Beach County. It cannot be predicted what kind of pressures the County would feel, or what changes to the planned build-out would occur, if the SCO does not succeed as planned. Based on all the evidence, it is fairly debatable whether the likelihood of economic benefit is enough to justify the planned use of Mecca's 1,919 acres. Other Alternatives Petitioners also contend that the proposed development at Mecca is not needed because better alternatives exist. Specifically, they contend that the Scripps project could be sited: on the Briger site adjacent to the Florida Turnpike on its west and straddling I-95 in the City of Palm Beach Gardens; on Parcel 19 just west of I-95 and the Florida Turnpike, straddling Indiantown Road in the Town of Jupiter; or in the Park of Commerce (a/k/a Florida Research Park) in the unincorporated County near Mecca in the northeast quadrant of the intersection of the Beeline and SPW. Although the County had a contract with Scripps Florida to be located at Mecca, during the review process the BCC requested a study of possible alternative sites. The number of sites reduced rather quickly to three: Briger; Parcel 19; and the Park of Commerce. Data and analysis at the time of adoption of the Plan Amendments indicated that each of these alternative sites had flaws and risk factors, making it fairly debatable whether Scripps should be sited at any one of them instead of at Mecca. All three proposed alternatives have less acreage than Mecca and do not provide the same opportunities for affordable housing, open space, or flexibility of design, so as to be able to be developed in accordance with the vision the County has for development on its own 1,919 acres at Mecca. The Park of Commerce has limited opportunity for affordable housing, is limited in permitted uses, and is limited in flexibility by existing and platted infrastructure and industrial uses. It is now being used for industrial purposes--a railroad, a General Motors distribution facility, and a Walgreen's distribution facility--not considered to be consistent with the County's vision for a biotechnology research park. In addition, it may become necessary in the future to construct an overpass at the Beeline and SPW directly over the only suitable location for construction of the Scripps facilities at that site. Parcel 19 cannot accommodate affordable housing and would require $75 million in construction of major interchanges at I-95 and Indiantown Road, after which Indiantown Road still would be seriously over capacity, creating great traffic problems. In addition, it would be difficult to achieve the County’s targeted development program of 8 to 8.5 million square feet of R&D uses. The 682-acre Briger site favored by the Petitioners is bisected by I-95 into two triangular pieces. It would not meet the acreage requirements of the County’s contract with Scripps Florida unless the City of Palm Beach Gardens waives certain upland preservation requirements. In addition, at this time Briger remains on the County’s list of properties for acquisition for preservation (although its placement on the list may be out-of-date since Briger's hydrologic connection to the Loxahatchee River Slough has been more disrupted by development since its listing). Even if the Scripps contract requirements could be met, it would require higher vertical construction, which would be less compatible with surrounding residential uses, would provide less open space, and would have reduced flexibility. The County's complete vision for onsite incorporation of uses and amenities would not fit on Briger. For example, the university tie-in, the hospital, and residential features would have to be offsite. Briger might have a short-term marketing advantage over Mecca (in part because hospitals and FAU's Jupiter campus already exist in close enough proximity). Briger also would be closer to major transportation facilities, but that advantage would not necessarily offset Briger's deficiencies. It is fairly debatable whether long-term success would be more likely at Mecca or at Briger. All four sites–-Mecca, Briger, Parcel 19, and the Park of Commerce-–are located in the eastern half of Palm Beach County, where growth pressures are strong, the County’s Plan is "tight," and build-out is anticipated within the next 30 years, even without the SCO, based on County data compilations for land use need purposes. Natural Resources Protection and Conservation While they may not protect and conserve natural resources in an absolute sense (as is rarely if ever possible when development takes place near natural areas), it is at least fairly debatable whether measures in the Plan and Plan Amendments to protect and conserve natural resources are adequate. See Findings 146-182, infra. Indicator 6 As to Indicator 6, significant new infrastructure will have to be extended to Mecca under the Plan Amendments. Development closer to existing roads and, to a lesser extent, the existing USA and LUSA might make more use of existing facilities and services possible. But the evidence was that most of the $15 million of centralized water and sewer lines that will serve the SCO at Mecca already are planned for extension of service to the UT Overlay. Many of the road improvements planned for the SCO at Mecca also are already planned. See Findings 116-117 and 152-155, infra. In addition, it is at least fairly debatable whether and to what extent greater use could be made of existing public facilities and services by locating the Scripps elsewhere in the County, or whether location elsewhere in the County would be better or even possible, especially given the County's complete vision for development of the SCO at Mecca. See Findings 85-92, supra. Given the decision to develop at Mecca, there was no evidence that existing public facilities and services will not be used to the maximum extent possible. Indicator 7 As to Indicator 7, there is no reason to believe that the development at Mecca resulting from the Plan Amendments will not maximize the use of future public facilities and services. (The County has not planned to provide centralized water and sewer service to the Vavrus property because it does not have the legal right or ability to provide services within the boundaries of the City of Palm Beach Gardens.) Indicator 8 As to Indicator 8, a disproportionate increase in the cost in time, money, and energy may result from providing and maintaining facilities and services to the SCO. However, while this indicator may be in evidence short-term due to the cost of constructing facilities to the SCO, over time these costs would be ameliorated as more development occurs in the area. Indicator 9 As to Indicator 9, as depicted on Map H of the DRI application, which is referenced in new Policy 1.2-f as a “land use/site planning measure,” it is at least fairly debatable whether the Plan Amendments provide a clear separation between rural and urban uses. The only rural uses adjacent to Mecca are the Vavrus land to the east, and Map H depicts a 50-foot buffer there. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Indicator 10 As to Indicator 10, no language contained in the Plan Amendments discourages or inhibits infill or redevelopment, and the Plan still contains several provisions encouraging infill and redevelopment. On the other hand, development occurring at Mecca obviously will not result in infill or redevelopment. To the extent that the availability of economic incentives for infill and redevelopment is limited, the significant economic incentives committed to the Mecca project will not be available for infill and redevelopment. However, it is at least fairly debatable whether the infill and redevelopment measures in the Plan will be compromised by the Amendments in view of the increasing growth pressures in the County and the “tight” supply of land for development. The Plan Amendments include numerous anti-sprawl development controls that also are considered in the urban sprawl analysis. The principal controls are in the structure of the Plan Amendments, primarily the minimum and maximum amounts established for specific uses, a requirement for phasing, and a required balance of residential and non- residential uses for each phase. To mitigate sprawl, development controls should be meaningful and predictable, but also flexible. They need not include numeric setbacks and building spacing requirements, or a site plan. It is at least fairly debatable that the controls in the Amendments satisfy the State’s criteria. Cf. Rule 9J-5.006(5)(j). Petitioners' Evidence One planning witness for Petitioners who opined that the Amendments constitute sprawl did not consider the extent, amount or frequency of any indicator, contrary to Rule 9J-5.006(5)(d). He also opined there is no need for the Amendments. However, in analyzing this issue, he only reviewed portions of the Plan and a six-page summary of the EAR prepared by Petitioners’ counsel. He did not examine the 2003 Population Allocation Model or the County’s population projections and land use need analysis.7 Another planning witness for Petitioners rendered opinions about the interpretation of several indicators in the urban sprawl rule, but his testimony did not constitute expert opinions as to whether the Amendments constitute sprawl, or are "in compliance." A third planning witness for Petitioners, from the TCRPC, opined that the Amendments are sprawl, as is the existing development near Mecca. However, he admitted the definition of “sprawl” in the TCRPC's SRPP is not the same as the definition in Rule 9J-5. Urban Sprawl Summary Based on the foregoing, the determinations by the County and DCA in this case that the Plan Amendments are consistent with the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources are subject to fair debate. Capital Improvements In this category, Petitioners contend that the Plan Amendments are inconsistent with Section 163.3177(3)(a) and Rule 9J-5.016(2) and (3)(b). The statute provides: The comprehensive plan shall contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth: A component which outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. The components shall cover at least a 5-year period. Estimated public facility costs, including a delineation of when facilities will be needed, the general location of the facilities, and projected revenue sources to fund the facilities. Standards to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service. Standards for the management of debt. The Rule provides: Capital Improvements Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C. Current local practices that guide the timing and location of construction, extension or increases in capacity of each public facility; The general fiscal implications of the existing deficiencies and future needs for each type of public facility. This analysis shall be based on the needed improvements, as identified in the other local government comprehensive plan elements, and shall address the relative priority of need among facility types, and shall support the future land use element; The costs of needed capital improvements for mitigation of existing deficiencies, replacement and new growth needs pursuant to the future land use element and shall explain the basis of cost estimates; The impact of new or improved public educational and public health care systems and facilities on the provision of infrastructure; The use of timing and location of capital improvements to public facilities to support efficient land development and goals, objectives, and policies in the future land use element. This analysis must take into consideration plans of state agencies and water management districts that provide public facilities within the local government jurisdiction; and An assessment of the local government's ability to finance capital improvements based upon anticipated population and revenues including: Forecasting of revenues and expenditures for five years; Projections of debt service obligations for currently outstanding bond issues; Projection of ad valorem tax base, assessment ratio and millage rate; Projections of other tax bases and other revenue sources such as impact and user fees; Projection of operating cost considerations; and Projection of debt capacity. Requirements for Capital Improvements Goals, Objectives, and Policies. * * * (b) The element shall contain one or more objectives for each goal and shall address: The use of the capital improvements element as a means to meet the needs of the local government for the construction of capital facilities necessary to meet existing deficiencies, to accommodate desired future growth and to replace obsolete or worn-out facilities; The limitation of public expenditures that subsidize development in high hazard coastal areas; The coordination of land use decisions and available or projected fiscal resources with a schedule of capital improvements which maintains adopted level of service standards and meets the existing and future facility needs; The extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards; and The demonstration of the local government's ability to provide or require provision of the needed improvements identified in the other local government comprehensive plan elements and to manage the land development process so that public facility needs created by previously issued development orders or future development do not exceed the ability of the local government to fund and provide or require provision of the needed capital improvements. There was no evidence that the Plan does not contain a CIE meeting these requirements or, more germane to this case, that the Plan Amendments undo the Plan's CIE, which already has been determined to be "in compliance." Actually, while seemingly focusing here on capital improvements other than those related to traffic circulation, Petitioners attempt to use these requirements primarily as additional bases for their urban sprawl arguments, supra, and their transportation concurrency and data and analysis arguments, infra. Chapter 2003-420, Laws of Florida, provides that the County in which Scripps is located shall have the exclusive right to provide central water and sewer service to the project. The County intends to provide such service to the SCO via lines extending from Okeechobee Boulevard and SR 7 about 12.5 miles away. The County has enough plant capacity to serve the SCO through build-out. Assuming Scripps Florida is located at the SCO, it would be expected to pay guaranteed revenue fees, connection fees, and on-line rates (which could be special rates set for Scripps and Mecca.) The evidence was that the total cost of construction for the lines to serve the SCO, while substantial at approximately $15 million (some of which would be expended with or without the SCO), is a relatively small percentage (5-6 percent) of the County's overall capital improvements budget, is relatively minor in light of the County’s strong financial condition, will enhance the use of existing assets and rate stability for customers, represents a least-cost and efficient approach for the area to be served, and will not cause other water and sewer needs to go unmet. The County’s 2005-2010 Capital Improvements Schedule (CIS) is financially feasible, as are each year’s program in the CIS. The CIS is based on best available data. Capital outlays to support the SCO will not deprive the County of money for other needed projects or distort the County’s fiscal priorities. Transportation Concurrency The Petitioners' focus here is on the CRALLS designations. CRALLS designations have been assigned to 37 different road segments and 6 intersections, not only near Mecca but also as far north as Indiantown Road, as far south as Okeechobee Boulevard, and as far east as I-95. They are set at vehicle loadings that match the traffic loads expected with development of the SCO. They only apply to the SCO. Other developments cannot rely on them but must use an applicable LOSS. In part, Petitioners frame their arguments on inconsistency with statutes and rules governing interim LOSS designed to correct existing deficiencies and set priorities for addressing backlogged facilities; Transportation Concurrency Management Areas used to promote infill and redevelopment; and Transportation Concurrency Exception Areas used to reduce the adverse impact transportation concurrency may have on urban infill and redevelopment and to achieve other goals and policies of the state comprehensive plan, such as promoting the development of public transportation. See Section 163.3180(9) and Rule 9J-5.0055(4)-(6). However, DCA and the County have made no effort to defend its CRALLS under those provisions.8 Rather, their position is that a CRALLS designation is a specialized LOSS that is "in compliance" without resort to those provisions of the law. DCA and the County seemed to come close to defending the CRALLS in part on the ground that the County has absolute discretion to establish these CRALLS and that they are not even subject to review for adequacy. Such a legal position would be untenable. Cf. Conclusion 217, infra. Assessment of the adequacy of the CRALLS is required. The transportation issues associated with the SCO are unprecedented in the County because of its size, location, and 30-year build-out. To address the challenges posed by these factors, the County relied on a combination of strategies to address transportation, including road improvements, CRALLS, adopting development controls for the SCO, and requiring mitigation. The initial transportation issue for the SCO was posed by FLUE Policy 3.5-d. This policy prohibits land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. This policy is self-imposed and not required by the State. The SCO would generate trips beyond the significance thresholds in FLUE Policy 3.5-d. The County Engineer supported an exemption from this policy for the SCO because traffic considerations should not outweigh the economic and other land use goals the County is pursuing with the SCO. The first traffic analysis for the SCO was included in the DRI application, and was predicated on 10.5 million square feet of R&D. Later, in conjunction with re-zoning, the County’s consultants prepared a concurrency analysis for 8.5 million square feet of R&D, reflecting the maximum allowed by the Plan Amendments. All traffic analyses were performed as they would have been for a private developer, with methodologies approved by the County in collaboration with FDOT, TCRPC and Martin County. Assumptions were conservative, representing a worst- case scenario. SCO-related road improvements approved by the County in its five-year road program for 2005-2009 included 18 segments and three intersections at a total cost of $179.7 million. Of these, eight projects totaling $64.8 million were not new or changed in their amount of funding. The SCO-related improvements in the five-year road program were incorporated into the CIS for 2005-2010. An additional $26 million for these projects was included for 2010. Approximately 70 percent of the improvements needed for the SCO was previously identified on the 2020 Roadway System Map. In addition to these construction projects, the County also lowered the LOSS on some roads and intersections that would be impacted by the SCO over the next 30 years. In doing so, the County utilized its long-standing policy of establishing a CRALLS designation for each such road segment or intersection. The County is authorized under its charter to set LOSS's for all major roadways in unincorporated areas and municipalities except for the FIHS. The State sets the LOSS on roads in the FIHS. The County's generally applicable LOSS is LOSS “D”. Since 1989, the County has utilized the CRALLS strategy to establish an alternative LOSS on some roads due to physical or policy constraints. Examples of physical constraints include natural features, waterways, right-of-way limitations, and other roads; neighborhood opposition to a wider road would be an example of a policy constraint. CRALLS designations are not limited to the Urban/Suburban Tier; they may be adopted for land in any tier. Under TE Policy 1.2-f, CRALLS designations by the BCC must be based on data and analysis. These data and analysis must address 11 criteria in the County’s Unified Land Development Code (ULDC). CRALLS standards typically are expressed as a numeric limit on trip loadings on the road segment or intersection in question, rather than reliance upon the conventional, generalized “A”-“F” standards used by transportation engineers. Since 1993, Chapter 163 and Rule 9J-5 have granted a local government discretion to adopt LOSS for seven types of public facilities, including roads other than FIHS roads. The only State requirements are that LOSS's must be adequate, based on data and analysis, and established for each facility type. Local governments are not prohibited from adopting LOSS's for different facilities within a service type or even project-specific LOSS's that overlay the more generally applicable LOSS for a facility or facility type. Of the 37 road segments and six intersections given project-specific CRALLS designations in the Amendments, the designations on nine road segments will become ineffective when the roads are widened as planned. Another seven segments may eventually have their CRALLS designations repealed as unneeded. These segments are projected to be no more than 12 percent over generalized LOS “D”, and the County’s experience is that a detailed arterial analysis generally will show such a segment actually operating at LOS “D” when site-specific factors are considered. Seven segments and one intersection already had CRALLS designations, but the CRALLS was changed to accommodate the SCO. An additional nine segments and four intersections were expected to have a CRALLS designation even without the SCO, due to pre-existing conditions. On all but two of these, the SCO accounted for 5% or less of the trip loadings. Five segments and one intersection received a CRALLS designation solely because of the SCO. These include three segments of PGA Boulevard, two segments of SPW, and the Northlake Boulevard to Orange Boulevard intersection. In analyzing an LOSS for adequacy, a local government should consider both technical and policy issues. Technical issues for roads include the actual amount of traffic to be allowed on a road segment or intersection at the peak hour in the peak season. Policy issues involve comparing increased congestion to other planning principles, such as preventing sprawl, promoting economic development, and neighborhood opposition to wider roads. There is not a limiting list of planning principles to consider in evaluating adequacy. The County Engineer concluded that these CRALLS designations were appropriate and adequate LOSS's. He based his opinion on the amount of traffic on each segment or intersection, how the road would function, fiscal issues, his knowledge of the area, residents’ opinions, and other factors. He noted that the maximum trips in each CRALLS designation are for the peak hour in the peak season; the peak season represents a 15 percent increase over the off-peak season. The CRALLS determinations were supported by the best available data. Among other things, the data and analysis addressed the 11 criteria identified in the ULDC. As transmitted, the Amendments included a number of temporary CRALLS designations. In its Objections, Recommendations and Comments (ORC), DCA objected that temporary CRALLS designations without an accompanying long- range CIS were inconsistent with Chapter 163 and Rule 9J-5. DCA suggested the County identify improvements for those CRALLS that were indeed temporary, and assign permanent CRALLS to those segments for which no improvements were planned. Of the 43 CRALLS designations in the Amendments as adopted, all but two were permanent. The CRALLS designations on two segments of Northlake Boulevard were to be “no longer in effect” after the extension of PGA Boulevard. These CRALLS designations are supported by a fully-funded extension of PGA Boulevard from SPW to the Beeline in the CIS. Considering the road improvements in the adopted CIS and the CRALLS designations adopted in the Amendments, the County will achieve and maintain the LOSS's on roads affected by the Amendments through 2009. In addition to road improvements and adopting CRALLS, the County adopted “best planning practices” for transportation in the Amendments. These included a variety of requirements in FLUE Policy 2.8-c, 1.-3., emphasizing bicycle and pedestrian mobility, project design measures like slip roads, and mixing uses to enhance internal trip capture. Policy 2.8-c, 9., included several requirements intended to foster public transportation at the SCO. Policy 2.8-d required a balance of residential and non-residential uses in each five-year project phase. Finally, the Amendments include required mitigation measures in conjunction with the CRALLS designations, including road construction and design principles for the SCO. Petitioners’ transportation witness opined that the CRALLS designations were not adequate and, in some cases, not feasible. But for several reasons, his opinions were not beyond fair debate. First, he based his opinion on the traffic analysis of 10.5 million square feet of development in the DRI application, which was later reduced to a maximum of 8.5 million, unbeknownst to the witness. Second, his technical analysis was general and did not take into account the County’s actual experience, which is not professionally acceptable data and analysis for purposes of a plan amendment. For example, some CRALLS loadings he said were impossible to achieve are already being met or exceeded in the County on actual roads, and traffic on some roads flows at speeds equivalent to LOS “D” even though trip loadings greatly exceed the LOS "D" numbers on the generalized LOS tables. Third, his opinion did not take into account the possibility that required on-site affordable housing and CRALLS mitigation measures in the Plan Amendments might increase internal trip capture and reduce trips on the external roadway system. Fourth, he assumed that the only policies the County could consider when evaluating the adequacy of a CRALLS designation are infill, redevelopment, and promotion of “forgotten modes” of transportation like bicycles; he did not consider economic development, urban sprawl, growth pressures, and other planning principles. Data and Analysis Paragraph 75 of the Amended Petition, labeled "Data and Analysis," alleges that the Plan Amendments are: not clearly based on the relevant and appropriate and professionally-accepted data and analysis regarding: impacts to adjacent natural areas; compatibility with adjacent land uses; impacts to the Loxahatchee River and restoration thereof; the Comprehensive Everglades Restoration Plan [CERP] and components thereof; impacts to rural communities; the availability and necessity of infrastructure and the provision thereof to support the project; the necessity for and the amount of land needed to accommodate the project; the availability and suitability of alternative sites for the project; the character of the undeveloped land and the surrounding community; the economic impacts of the proposed plan amendments; [and]9 the likelihood of developing an economically significant biotech industry as [a] result of the plan amendments . . . as required by sections 163.3177(6)(a), (8) and (10)(e), Fla. Stat. and Rule 9J-5.005(2) and (5)10 and 9J-5.006(2) and 9J-5.013(1) F.A.C.11 Section 163.3177(6)(a) requires that the future land use plan be based on appropriate data and analysis. Section 163.3177(8) requires all elements of comprehensive plans to be "based upon data appropriate to the element involved." Section 163.3177(10)(e) states the Legislature's intent that goals and policies be "clearly based on appropriate data"; states that DCA "may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted"; and states that DCA "shall not evaluate whether one accepted methodology is better than another." Rule 9J-5.005(2) states in pertinent part: (a) All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based upon 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 adoption of the plan or plan amendment at issue. Rule 9J-5.006(2) describes the Land Use Analysis Requirements for the FLUE. It should be noted that new FLUE Policy 2.8-f in the Plan Amendments provides: "If the Scripps Research Institute does not move forward on the Mecca site, Staff shall bring to the BCC for initiation proposed amendments to consider removing any text and maps related to the [SCO] from the Comprehensive Plan." While Petitioners characterize this Policy as an admission that the Plan Amendments are not "in compliance," the Policy actually is prudent and would allow reconsideration of planning for Mecca and vicinity with a Scripps-anchored biotechnology cluster effort located elsewhere in the County (or even without any Scripps-anchored biotechnology cluster effort in the County, if that were to occur) as part of the EAR-based and sector planning efforts of the County. Some parts of the data and analysis would not be "professionally accepted" and, standing alone, would not be adequate to support the Plan Amendments. For example, the Washington Economic Group report is not "professionally accepted" because: it does not explain its methodology; it is based on an erroneous assumption that the plan for Scripps Florida, which is planned to be smaller than Scripps California, will generate the level of biotechnical industry found in all of San Diego, which includes not only Scripps, but also the University of California at San Diego and the Salk Institute in its cluster; it overestimates the importance of Scripps' role in the San Diego cluster; and it double- counts Scripps employment in its employment estimates. But other data and analysis corrected these errors. The amount of data and analysis supporting the Plan Amendments is voluminous. Petitioners' data and analysis arguments essentially are that the same evidence they presented as to the substantive areas of concern proves alleged failures of data and analysis to be "professionally accepted" and adequate. As indicated elsewhere in this RO, Petitioners' evidence did not prove their case as to substantive areas of concern beyond fair debate; likewise, they did not prove beyond fair debate that the totality of the data and analysis supporting the Plan Amendments were not "professionally accepted" or were inadequate. Internal Consistency The Amended Petition alleges numerous internal inconsistencies. Section 163.3177(2) requires: "The several elements of the comprehensive plan shall be consistent . . . ." Rule 9J-5.005(5) repeats this admonition in subparagraph (a), and subparagraph (b) adds: "Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan." Petitioners allege inconsistency with the following statements in section B., the Assessment and Conclusions section of the Introduction to the FLUE, that the updated 1989 Plan implements the direction provided by the BCC to: strengthen and facilitate revitalization and redevelopment and infill development programs; protect agricultural land and equestrian based industries; balance growth through the County; * * * 8. establish a timing and phasing program to provide for orderly growth; * * * coordinate growth with the provision of infrastructure; define how growth/services will be managed in rural residential areas; define service areas and the type of services to be provided within each service area; and provide criteria for expanding the Urban/Suburban Tier. Petitioners allege inconsistency with the following GOPs of the FLUE: Goal 1, to establish the Tier System. Policy 1.1-b, establishing criteria for redesignation of a Tier. Policy 1.1-d, not to modify the Tier System if redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006. Objective 1.4, for a Rural Tier to protect and maintain rural residential, equestrian, and agricultural areas. Policy 1.4-k, not to make future land use decisions that increase density and/or intensity requiring major new public investments in capital facilities and related services in the Rural Tier. Objective 2.1, to designate sufficient land area in each land use designation to manage and direct future development to appropriate locations to achieve balanced growth. Policy 2.1-f, not to exceed the natural or manmade constraints of an area considering assessment of soil types, wetlands, flood plains, wellfield zones, aquifer recharge areas, committed residential development, the transportation network, and available facilities and services; and not to underutilize existing or planned capacities of urban services. Policy 2.2-b, requiring: an adequate justification and a demonstrated need for proposed future land use; for residential density increases to demonstrate that the current land use is inappropriate; for a review and determination of compatibility with existing and planned development in the immediate vicinity; and an evaluation of impacts on the natural environment, availability of facilities and services, adjacent and surrounding development, future land use balance, prevention of urban sprawl as defined by Rule 9J- 5.006(5)(g), Community Plans and/or recognized Planning Area Special Studies, and municipalities in accordance with Intergovernmental Coordination Element Objective 1.1. Policy 2.2-d, to ensure consistency of the County's ULDC with the appropriate elements of the Plan. Objective 2.6, to establish a transfer of development rights (TDR) program. Policy 2.6-b, requiring the TDR program to be the method for increasing density within the County unless an applicant can justify and demonstrate need and that the current designation is inappropriate, or is using the Voluntary Density Bonus program, as outlined in the Housing Element and the ULDC. Policy 2.6-f, limiting potential TDR receiving areas to the Urban/Suburban Tier, Planned Development Districts and Traditional Development Districts requesting a density increase, and subdivisions requesting a bonus density above the standard density. Policy 2.6-h, prohibiting designation of receiving areas which would result in a significant negative impact upon adjacent Environmentally Sensitive Land. Policy 2.6-i, prohibiting designation of receiving areas which would be incompatible with surrounding existing and future land uses. Goal 3, to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner. Objective 3.1, to establish graduated service areas to distinguish levels and types of services needed in a Tier. Policy 3.1-a, to establish the USA, LUSA, and RSA considering: the density and intensity of land uses depicted in the FLUE Atlas; the cost and feasibility of extending services; the necessity to protect natural resources; and the objective of encouraging reinvestment in the Revitalization and Redevelopment Overlay. Objective 3.4, to require a RSA which meets the needs of rural development and use without encouraging the conversion of rural areas to more intense uses. Policy 3.4-a, for the RSA to include those areas of the County where the extension of urban LOS's is neither foreseen during the long range planning horizon nor warranted by development patterns or densities and intensities allowed. Policy 3.4-c, not to provide or subsidize centralized potable water or sanitary sewer in the RSA unless: required to correct an existing problem; required to prevent a projected public health hazard; required to prevent significant environmental degradation; or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. Objective 3.5, to require availability of services concurrent with impacts of development, to ensure consistency of decisions regarding location, extent, and intensity of future land use (particularly urban expansion), with types of land use and development established in each Tier. Objective 4.1, to develop and implement a Community Planning and Neighborhood Planning program, consider the program's plans for more livable communities with a strong sense of place and identity for the various regions in the County. Policy 4.1-c, to consider the objectives and recommendations of all Community and Neighborhood Plans, including recognized Planning Area Special Studies, prior to extending utilities or services, approving land use amendments, or issuing development orders for rezoning, conditional use, or Development Review Committee approval. Goal 5, to provide for the continual protection, preservation, and enhancement of the County's various high quality environmental communities. Petitioners allege inconsistency with the following parts of the Conservation Element (CE): Objective 2.1, to preserve and protect native communities and ecosystems to ensure that representative communities remain intact, giving priority to significant native vegetation. Policy 2.1-g, to ensure that management plans are developed for County-owned or County-managed natural areas and that uses allowed on these lands are compatible with them and preserve their natural character. Objective 2.4, to protect and preserve endangered and threatened species, species of special concern, and their associated habitats. Petitioners allege inconsistency with the following GOPs of the CIE: Objective 1.1, to maintain minimum LOSS's for various facilities, including traffic circulation, and to issue development approvals based on ability to maintain those LOSS's. Objective 1.4, to identify and fund services and capital improvements required by the Plan. Policy 1.4-a, to fund projects and programs to (not in order of importance): correct public hazards; eliminate existing deficiencies in LOS's; provide capacity for projects in the USA approved through development orders; provide for renewal and replacement of, and improvement to, existing public infrastructure and physical assets; maintain LOS's as new growth occurs; increase existing LOS's to desired LOS's; and implement the GOPs in the Plan. Policy 1.5-c, not to provide urban LOS's in the RSA except where allowed under CIE Objective 1.1, required to correct a public health hazard, or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. (Other internal consistencies mentioned in Petitioners' PRO were not alleged or heard by consent and may not be considered. See Conclusion 212, infra.) The evidence did not prove beyond fair debate that the Plan Amendments cause the elements of the Plan to be internally inconsistent, or cause the depictions of future conditions in the FLUE Atlas not to reflect the GOPs within all elements of the Plan. Natural Resources Impacts on the Mecca Site As a result of its use for citrus growing and mining, Mecca itself is devoid of significant environmental value. The South Florida Water Management District (SFWMD) has found no jurisdictional wetlands on it. There are no native plant communities; in fact, there is virtually no native vegetation anywhere on the site. Mecca is used by wildlife in limited and intermittent ways. The main wildlife use is localized foraging by species such as sandhill cranes and wood storks in the impoundment and irrigation ditches. Mecca does not provide suitable habitat for nesting or denning. A listed species survey revealed no gopher tortoises or snail kites. The surface water management system for the first 535 acres of the SCO has received a construction permit, and the system for the total site was conceptually approved based on water quantity and water quality compliance. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, DOAH Case Nos. 04-3064 and 04-3084, 2004 WL 2770101 (DOAH December 3, 2004; SFWMD Final Order December 8, 2004). No significant adverse impacts to natural resources on Mecca itself would result from development of the SCO on Mecca. Impacts of Development on Mecca on Natural Areas Surrounding Mecca The lands surrounding Mecca are more significant environmentally. They include Corbett WMA to the west, Hungryland Slough to the north and northeast, the Vavrus property to the east, and the North County Airport Preserve (Conservation lands to the west, south, and southeast of that Airport) east of the Vavrus property. Farther away to the east and northeast is the Loxahatchee Slough and the Northwest Fork of the Loxahatchee River, including its federally- designated Wild and Scenic and Outstanding Florida Water portion. Farther away to the southeast is the Grassy Waters Water Preserve Area, which is both a high quality natural wetlands area and an important source of drinking water for the City of West Palm Beach. New FLUE Policy 2.8-c requires the adoption of design standards for the SCO which, among other things, will at a minimum address: 4. Protection of conservation lands to the north and west of the SCO and include a passive recreational wetland system to enhance the quality of surrounding areas of environmentally sensitive lands. In accordance with this Policy, Map H designates a 247-acre, 500-1,000 foot wide flow-way along the entire north and west sides of Mecca. The flow-way will consist of braided channels through a freshwater marsh, as well as forested wetland and upland tree islands. These wetlands will enhance recreation and wildlife use. The mining lake and a new, separate lake on the south end of the site will have littoral shelves and plantings conducive to wildlife use. In addition to providing onsite environmental benefits, the flow-way will help protect adjacent environmental lands to the west and north from the effects of development on Mecca itself. Impacts of Road Construction on Natural Areas Surrounding Mecca SPW as currently depicted in the Plan runs directly along the western border of Mecca immediately adjacent to Corbett WMA. By virtue of the Amendments, the road alignment has been moved eastward onto Mecca, with the flow-way on its west as a buffer between the actual road and Corbett. This road alignment and buffer can be expected to have less of an impact on Corbett than would an alignment without a buffer. In addition to the impacts of development on Mecca itself, the Plan Amendments also affect road construction offsite that have environmental impacts. The extension of SPW from south of Mecca north to the Beeline through the Hungryland Slough was planned and included in the Plan's 2020 Roadway System Map before the Amendments were adopted, but was not in the County's five-year road program through 2009. The Amendments enlarged the planned roadway from four to six lanes and accelerated its construction to 2007. The extension of PGA Boulevard west from the Beeline to Mecca was not depicted in the Plan prior to the Amendments. The Plan Amendments identify a new 260-foot wide ROW on the new TIM; although the ROW could accommodate ten lanes of roadway, a six-lane road is depicted on the new 2020 Roadway System Map. The new road construction is expected to impact a number of wetlands on private property, but the exact extent of this impact is not known as its precise alignment has not been selected, and the general alignment depicted in Ordinance No. 2004-39 does not allow an exact assessment of potential environmental impacts. In order to examine potential impacts of the PGA Boulevard Extension, the County studied the “worst case scenario” for the extension if it were completed in a straight-line from the Beeline to Mecca. A road constructed on this alignment would directly impact over 45 acres of wetlands, and have an indirect impact upon another 56 acres of wetlands. SFWMD considered this “worst case scenario” as part of its review of secondary impacts for purposes of the conceptual permit it issued for the SCO, which assumed that impacts will be lessened during subsequent permitting as a result of SFWMD's avoidance, minimization, and mitigation requirements. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, supra. Habitat Fragmentation The integrity of natural areas is very important to wildlife. For one thing, the ability of wildlife to move around and mix to enlarge the gene pool increases the structural stability of wildlife populations. Loss of enough integrated habitat can be very damaging to particular species of wildlife. As habitat becomes further and further fragmented by development, the remaining connections among areas of quality habitat become increasingly important in general and especially for particular species of wildlife. Development and roads built through natural areas result in road kill and habitat fragmentation, which compromises the quality of the natural areas. Before the Plan Amendments, through at least 2009, wildlife would have had the ability to use Mecca and especially Hungryland to move between Corbett, Vavrus, the North County Airport Preserve, without having to cross any major roads until coming to the Beeline and Northlake Boulevard, which separate those areas from the Loxahatchee Slough northeast of the Beeline and north and south of existing PGA Boulevard, and from the Grassy Waters Preserve south of Northlake Boulevard. At some point between 2009 and 2020, a four-lane extension of SPW was planned to be added. As a result of the Plan Amendments, the SPW extension will be accelerated to 2007 and constructed with two additional lanes. As a result, the Plan Amendments will tend to reduce connectivity, increase fragmentation of natural habitats, and probably increase road kill of deer, alligators, various kinds of turtles, otters, and snakes. While not part of the Plan Amendments, planned protection measures include fencing to separate Corbett from the Mecca project and wildlife crossings and bridging installed along with the widening of SPW north of Mecca and the extension of PGA Boulevard to Mecca in an attempt to retain the linkage of open wetland and upland areas to the west, north and east, consistent with CE Objective 5.1. Unfortunately, even if the fencing and wildlife crossings and bridging are 100 percent effective for larger animals (which they probably will not be), it should be recognized that many smaller animals will benefit little from them if at all. In particular, increased road kills of listed indigo snakes should be expected due to their large habitat home range (200-acre home range for males). Fire Management Virtually all plant communities in the vicinity of Mecca are fire dependent--in order to be maintained in their natural state, they must be burned approximately every three years, or they will be invaded by exotic species, and their habitat values will be reduced. The inability to maintain a regular burn schedule also poses a public safety threat due to the increased risk of wildfires. Fire management is compromised near roadways and developed areas due to health concerns, reduced visibility, and increased wildfire threat. Caution is used when burning near roadways so as not to cause (traffic accidents,) or to be blamed unfairly for causing them, which can be just as bad for the public relations that have to be maintained to successfully fire-manage natural lands. If an airport, hospital, school, or community is within two miles of a burn area, it is considered a smoke-critical area. If Mecca is developed as proposed, it will be considered a smoke-critical area for many burns in Corbett, which will not be able to be burned if the wind is blowing from the west. In Corbett, which has a lot of lighter wood, fires often smolder for weeks, further constraining fire management. For these reasons, the development allowed by the Plan Amendments will negatively impact the management of Corbett. However, there are alternative fire-management techniques that can be used, if necessary, in natural areas adjacent to Mecca. In addition, with or without the SCO, the County was planning a four-lane extension of SPW along the eastern boundary of Corbett, which would be a constraint on fire management. Light Impacts The proposed development on Mecca will add light sources that will alter the nighttime sky viewable from Corbett, Hungryland, and the Loxahatchee Slough. Depending on the extent, such an alteration would reduce recreational values of Corbett. Lights also can interrupt bird migration and be harmful to migratory birds. The area surrounding Mecca is important for migratory birds because the lack of lighting provides a dark sky and safe route for migration. Special downward-directed lighting that can reduce the adverse impacts from lighting is intended to be used on the Mecca project although a clear requirement to use them is not included in the Plan Amendments. Noise, Pollution, and Mosquito Control Noise and other roadway disturbance cause behavioral problems in wildlife, disrupt bird-nesting for considerable distances, and negatively impact prey and predator by interfering with offensive and defensive mechanisms. However, it should not be anticipated that these kinds of impacts will be significant. In most cases, they probably will disturb the human recreational users of these public lands more than the wildlife. Fertilizer and pesticide use on Mecca may be harmful to wildlife on adjacent properties. But there are ways to control their ill effects through land development regulation consistent with provision in the CE of the Plan. Mosquito control is typically required in urban developments, and is accomplished through the use of pesticides that are not only targeted towards mosquitoes, which are an important part of the food chain, but also kill a wide variety of insects, spiders, and invertebrates. This reduces the populations of these species, negatively impacts species that rely on them for food, can be expected to result in less food for birds such as tree swallows, which feed heavily on mosquitoes, as well as dragonflies, and numerous species that rely on mosquito larvae in the aquatic environment. Loxahatchee River Basin Petitioners contend that it is unacceptably poor planning to develop the SCO on Mecca at this time and eliminate it as an option for use for water storage as part of efforts to restore the Loxahatchee River. The Loxahatchee River has been negatively impacted by development in its basin. Such development has resulted in several changes, including the redirection of water discharge to other basins and an unnatural increase in stormwater drainage. These changes to the drainage patterns have resulted in several problems, including excessively high flows in the river following rainfall events, and reduced base flows during the dry season. Excessive flows during the wet season have resulted in erosion of the stream bed, sedimentation blocking the channel at times, and sometimes water quality problems and fish kills. Reduced base flows during the dry season have contributed to allowing saltwater intrusion up the river channel. (Other contributing factors include straightening and stabilization of the inlet to reduce the need for maintenance dredging and the removal of a large oyster bar from the riverbed for navigation purposes.) Saltwater intrusion has altered aquatic ecosystems and caused a change in the vegetation along the riverbanks. Specifically, freshwater cypress-dominated wetlands used to occur as far seaward as 6.2 miles from the river mouth; now mangroves have replaced the cypress swamps as far inland as river mile 9.2, and the cypress wetlands to river mile 10.2 are stressed. Restoration of the Loxahatchee River is an objective of CERP, North Palm Beach County Part One. One component of North Palm Beach County Part One was for SFWMD to acquire rock mine pits for water storage from Palm Beach Aggregates near where the L-8 canal meets the C-51 canal. SFWMD plans to channel water through canals into these pits during wet season or high rainfall events, then discharge the water from the pits back through the canals during dry season. One destination for this fresh water during the dry season would be the Loxahatchee River. Until recently, prior to the Scripps opportunity, the North Palm Beach County Part One CERP team also was considering use of Mecca for water storage as a possible management measure in the overall CERP strategy for restoration of the Loxahatchee River. Mecca was considered for two main reasons. One was its location on the west leg of the C-18 canal, which receives discharges from the C-18 basin and flows into the Loxahatchee River. Water could be fairly easily stored there during the wet season and released to the river during the dry season. The other was its disturbed condition, being an orange grove and sand mine. The only other potential water storage sites near the C-18 canal without pristine wetlands that would be unsuitable and undesirable sites for a water storage facility is approximately 1,500 acres of disturbed agricultural land on Vavrus. (The other two-thirds of the Vavrus property has high-quality wetlands habitat.) However, Mecca was not specifically mentioned in any component of CERP, North Palm Beach County Part One, and consideration also was being given to restoring the Loxahatchee River without using Mecca for water storage. No decision was made to use Mecca for water storage, and no steps were taken to purchase Mecca for this purpose. When the Scripps opportunity arose, the County purchased the property for development of a biotechnology research park and applied to SRWMD for a surface water storage and management system and environmental resource permit. One issue was whether the permit would be consistent with the objectives of SFWMD, including CERP. SFWMD did a preliminary study, which included modeling, and determined that Mecca would not be needed for water storage, finding that water storage capacity available in the Palm Beach Aggregates rock mine pits was sufficient, given the pits’ location, depth, and access to nearby canals. SFWMD already had a contract for use of 48,000 acre-feet feet of storage capacity, which is more than seven times the achievable storage at Mecca. In addition, SFWMD was negotiating to acquire the right to double that storage capacity at Palm Beach Aggregates. Based on the County's plans to develop the SCO on Mecca, and the options available for restoring the Loxahatchee without water storage on Mecca, the CERP team eliminated the Mecca option. Instead, SFWMD and the County coordinated on the role the SCO might play in the recovery effort. SFWMD concluded that Mecca could be used to advantage as part of the water conveyance system between the rock mine pits and environmental areas, including the Loxahatchee River. Establishing a flow-way from the south to north of Mecca would give SFWMD another route with which to move water, would reduce dependence on Lake Okeechobee for fresh water, and would provide greater base flows to the Loxahatchee. Based on SFWMD input, the County designed for Mecca a flow-way that will allow flow up to 1,000 cubic feet of water per second (cfs) to assist recovery efforts for the Loxahatchee. Construction at Mecca is phased to assure that the existing onsite impoundment will be in place until the flow-way is functioning. This conveyance system will benefit offsite resources and improve water quality, and is consistent with and complementary to SFWMD’s CERP implementation. Petitioners' witnesses criticized the decision to proceed with development of the SCO on Mecca at this time on the ground that CERP's implementation report (a/k/a "tentatively selected plan") has yet to be approved. However, approval requires not only agreement by the State and federal agencies involved but also a vote of the United States Congress, which may not occur until 2008. It is a fairly debatable policy question whether to postpone a decision on developing the SCO at Mecca until Congress approves an ultimate CERP implementation plan. Petitioners' witnesses also criticized the modeling relied on by SFWMD to eliminate the Mecca option. They pointed out that the modeling was not peer-reviewed and that it assumed 80,000 to 100,000 acre-feet of storage at the rock mine pits. But this point, too, is fairly debatable. First, while peer-review is required in the CERP planning process, it is not required of data and analysis under the GMA. See Finding 136, supra. Second, the purpose of the modeling was to supplement modeling already done assuming 48,000 acre-feet of storage for comparison purposes. It was not intended to answer the ultimate question of CERP planning process--whether the CERP implementation plan will meet CERP objectives, including restoration of the Loxahatchee. In addition, based on the evidence, prospects for obtaining the additional storage seem reasonably good. Third, water from the rock mine pits is only one of four sources of flow needed for restoration of the Loxahatchee. The combination of sources CERP will use has not been determined yet. Preliminarily, it is estimated that base flows from the south will be required to maintain 65 cfs minimum flows at the Lainhart Dam. Based on the evidence, the prospects for being able to maintain those flows using water from the rock mine pits are reasonably good. Other necessary flow will be sought from the Palmar/Cypress Creek and Kitchen Creek areas to the north. Fourth, as for reducing high flows during the wet season, it is fairly debatable whether the plan to use the Palm Beach Aggregates rock mine pits alone for water storage will work well enough. It could be that, despite capacity limitations on storage potential in the C-18 basin, some storage there may prove beneficial, perhaps in conjunction with aquifer storage and recovery wells (ASRs), along with the rock mine pits. Even with the Plan Amendments, there remains some potential at this time that a limited portion of Mecca and disturbed portions of Vavrus could be used for this purpose if needed. Petitioners' witnesses also complained that use of the rock mine pits along with a flow-way through Mecca will require potentially costly land acquisition and permitting and modification of existing canals and construction of new canals, as well as larger pumps, and that water will be lost in transit between the rock mine pits and Mecca through evaporation. But there was no evidence that those factors will in fact harm or jeopardize restoration of the Loxahatchee River. Meanwhile, it is significant that the flow-way on Mecca will be provided by the County and will not cost SFWMD or CERP anything. Natural Resources Summary As can be seen, development of the SCO at Mecca will not be without some adverse impacts to natural resources and the environment. However, the County's determination that the benefits of the SCO outweigh the harm of those impacts, so as not to cause the Plan Amendments to be "in compliance," is a policy decision that is at least fairly debatable. Community Character and Compatibility It is obvious that the Plan Amendments will result in a complete change in the character and use of the Mecca site. Without question, development of the SCO at Mecca will impact adjacent lands and the character of the nearest communities. The question raised, however, is whether the changes at Mecca are compatible with the character and uses of the surrounding lands. New FLUE Policy 2.8-c requires, among other things: urban uses allowed by the SCO to have a defined edge; protection of conservation lands to the north and west by a passive recreational wetland system to enhance the quality of surrounding environmentally sensitive lands; and compatibility with and minimization of impacts on land uses adjacent to the SCO. Map H of the DRI application shows wetland and other buffers on the north, west, and south sides of the SCO, and a 50-foot upland buffer along the Vavrus property to the east. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Corbett WMA and the Hungryland preservation lands in Unit 11 will be buffered by passive recreational wetlands 500 to 1,000 feet wide, based on Map H. Corbett WMA will be benefited by moving Seminole Pratt-Whitney (SPW) Road to the east of the SCO westerly buffer and converting the existing roadbed to an equestrian trail.12 To the south, The Acreage is an example of urban or suburban sprawl. A residential development platted in 1.25- acre lots, it has all internal roads in place and in use. There was ample evidence that development of the SCO can be compatible with The Acreage. The southerly buffer between the nearest residence in The Acreage and development in the SCO would be about 800 feet. SPW already is in the 2020 TIM and Roadway System Map as a four-lane paved road through The Acreage and north past Mecca and the Beeline to Indiantown Road. However, SPW Road already has a 120-foot-wide ROW, which can accommodate a six- lane road, and The Acreage Neighborhood Plan calls for construction of this road from Northlake to the Beeline Highway, as well as extension of SR 7 north from Okeechobee Boulevard to Northlake. There is already heavy traffic on the few major through-roads in The Acreage, and that will increase incrementally. At the same time, some work trips from The Acreage to areas of the County farther east could be offset by employment opportunities in the SCO. The North County Airport has a five-mile runway buffer zone precluding educational uses. That buffer zone was accommodated on the SCO by the arrangement of uses on Map H. The new extension of PGA Boulevard from the SCO to the Beeline Highway will be subject to FAA setback requirements, but there are options for addressing that issue when an alignment is selected. The 28-acre Accessory Site is located on the west side of SPW Road just south of the SCO. Its use for construction of SPW Road, a connector canal, and an FPL substation is compatible with the existing FPL transmission line on the property. The substation will be sufficiently buffered by canals and SPW Road from The Acreage to its east and south. Many residents in the communities in the vicinity of Mecca desire to preserve the character of their communities or, it seems, even restore it to what it was before the growth the County has seen in this area over the last several years. Several own horses and desire to continue to ride their horses along the roads in the area. However, as indicated, with or without the Plan Amendments, growth in the area was expected, the County was planning to build roads in the area, and traffic was expected to increase. Based on the foregoing, it is fairly debatable whether the Plan Amendments are compatible with community character and surrounding land uses. Regional and State Plans Section 163.3177(10) states in pertinent part: for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Treasure Coast Strategic Regional Policy Plan (SRPP) In the Amended Petition, the Petitioners did not allege the Amendments are inconsistent with the SRPP, as a whole. Only allegations in the Amended Petition may be considered. See Conclusion 212, infra. Notwithstanding testimony from Petitioners’ TCRPC witness that the Plan Amendments were not consistent with some provisions of the SRPP, he did not testify that they were inconsistent with the SRPP as a whole. The Amendments further some parts of the SRPP. These include SRPP Goal 3.6 and SRPP Goal 3.7 of the Economic Development element, and their supporting strategies and policies. Petitioners' TCRPC witness testified there were five inconsistencies between the Amendments and the SRPP. However, he admitted that he did not recommend that TCRPC file formal objections to the Amendments with DCA on three grounds he cited for inconsistency at hearing --proximity to the Corbett WMA and other natural resources, the CRALLS designations, and proximity to the North County Airport. In discussing some provisions, this witness failed to give the SRPP its proper context. Many goals, strategies, and policies in the SRPP use directive verbs intended to be recommendations to a local government, not requirements. As one of his five grounds of inconsistency with the SRPP, Petitioners' TCRPC witness opined that Regional Goal 4.1 and its supporting measures require the County to prepare a regional plan before urban development may be allowed at Mecca, and to ensure such development meets the SRPP’s definition of a new town, village or city. However, this goal and its key provisions use the verb “should” and therefore are not mandates. Further, a plain reading of these provisions shows no requirement for the County to complete a regional plan as a pre-requisite for urban development. Also, the TCRPC witness opined that SRRP Policies 9.1.1.1 and 7.1.3.1 prohibit CRALLS designations outside urban areas. However, a plain reading of these policies shows no basis for such an assertion, and the witness later admitted the SRPP does not prohibit CRALLS designations in rural areas. Moreover, his testimony on this point was contradicted by his testimony that the SRPP is only “advisory.” State Comprehensive Plan The State Comprehensive Plan (SCP) is a very broad, direction-setting document. The SCP provides over-arching policy guidance, and does not impose or authorize the creation of regulatory authority. The Amended Petition alleged that the Amendments are inconsistent with the goals of the SCP regarding Land Use, Water Resources, Natural Systems and Recreational Lands, Transportation, and Urban and Downtown Revitalization, as well as numerous policies under these goals. Based on these allegations, Petitioners alleged that the Amendments are inconsistent with the SCP as a whole. To the contrary, the record evidence demonstrates that all relevant issues regarding water and other natural resources, land use, and transportation were taken into account by the County and are addressed in the Amendments. Additionally, the Amendments are consistent with and further numerous goals of the SCP not mentioned in the Amended Petition. The Amendments contain a commitment that each phase of development must contain affordable housing for very low, low, and moderate income households. This commitment furthers the SCP goal to “increase the affordability and availability of housing for low-income and moderate-income persons ” § 187.201(4), Fla. Stat. The Amendments have as their principal focus the creation of quality employment opportunities with Scripps Florida as anchor tenant. This purpose is consistent with and furthers the SCP policy to “[a]ttract new job-producing industries, corporate headquarters, distribution and service centers, regional offices, and research and development facilities to provide quality employment for the residents of Florida.” § 187.201(21)(b)(1), Fla. Stat. Summary Using the statutory definition of internal consistency, it is not beyond fair debate that the Plan Amendments are inconsistent with either the TCRPC's SRRP or the SCP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2005.
The Issue The issue presented for decision in this proceeding is whether a future land use map (“FLUM”) amendment, adopted by Hillsborough County on October 27, 1994, as part of its Comprehensive Plan update for the planning time frame through 2015 (variously referred to as the “Comprehensive Plan” or "CPU-2015"), that changed the future land use category on a 253 acre parcel1 in Northwest Hillsborough County ("the Geraci Parcel") from Regional Commercial ("RC") to Community Mixed Use-12 ("CMU-12") complies with the requirements of Chapter 163, Part II, Florida Statutes, as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioners Nick and Peter Geraci are the fee simple owners of a parcel of land comprising approximately 450 acres located on the northeast corner of the intersection of North Dale Mabry Highway and Van Dyke Road, two hundred fifty-three (253) acres of which are at issue in this proceeding. Advance Leasing is a Florida corporation that was a contract vendee for a portion of the Geracis’ property intended for development as a “super regional” or “regional scale” mall, and was the applicant in the amended applications for DRI approval of that mall. Hillsborough County’s motion to dismiss Advance Leasing as a party for failure to establish standing as an affected person under Section 163.3184(1)(a), Florida Statutes, was granted at the final hearing. Advance Leasing failed to establish that it was an entity that either owned or operated a business within Hillsborough County or owned property in Hillsborough County as of October 27, 1994. Respondent DCA is the state land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes, pursuant to Sections 163.3184, 163.3187 and 163.3189, Florida Statutes, and to determine compliance with the relevant provisions. Respondent Hillsborough County is a local government with responsibility to prepare and adopt a Comprehensive Plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171 and 163.3174, Florida Statutes. The Hillsborough County Board of County Commissioners makes the final, legislative decision on all Comprehensive Plan amendments in Hillsborough County. Hillsborough County Charter Section 9.09 specifies that a single local planning agency, created by special law, "shall have responsibility for Comprehensive Planning and related activities[.]" The Hillsborough County Local Government Comprehensive Planning Act, as amended by Chapter 97-351, Laws of Florida, designates the Hillsborough County City-County Planning Commission ("Planning Commission”) as Hillsborough County's local planning agency. The Planning Commission is charged with preparing Comprehensive Plans and making recommendations to the public bodies for Hillsborough County and the incorporated municipalities within Hillsborough County. The role of the Planning Commission is advisory and its recommendations are not binding upon Hillsborough County. Intervenors Sierra Club and Dr. Richard and Bonnie Hoffman have established their standing to participate in this proceeding as "affected persons" pursuant to Section 163.3184(1)(a), Florida Statutes. Sierra Club represents numerous members who reside in Hillsborough County, and also operates a business within the boundaries of Hillsborough County by way of its local affiliate. The Hoffmans own property within Hillsborough County. Both Sierra Club and the Hoffmans participated in the local government proceedings in accordance with Section 163.3184(1)(a), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Administration Commission enter a final order finding the portion of CPU-2015 challenged by the Petition to be in compliance. DONE AND ENTERED this 14th day of October, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1998.
