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 The issue in this case is whether the City's Future Land Use Map (FLUM) Amendment for Site 7 is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The City of Groveland is located in Lake County, mostly north of State Road 50 and the northeastern corner of the Green Swamp. The core of the City is in the vicinity of the intersections of State Road 50 with State Road 33 (to the south) and State Road 19 (to the north). There are many lakes and wetlands within the City and surrounding the City in Lake County. The Green Swamp was designated an Area of Critical State Concern by the Florida Legislature in 1979. It consists of approximately 500 million acres south from the City through south Lake County and into Polk County. It is bordered on the east by U.S. Highway 27 and on the west extends over the County line into Sumter County. The Green Swamp is important as a statewide resource to Florida because it is one of the last remaining intact ecosystems in Florida. It is one of Florida's largest wetland systems, second only to the Everglades. It includes the headwaters of five rivers, and provides recharge to the Floridan Aquifer, the primary source of drinking water for Florida. It is an ecologically and hydrologically significant resource. It provides habitat for many endangered species including gopher tortoise, scrub jay, and wood stork. In 2003, the City annexed the parcels known in this proceeding as Sites 4, 5, 6, and 7 from Lake County into the City. All of the parcels are located east of State Road 33 and south of State Road 50 and within the boundaries of the Green Swamp. Sites 4, 5, and 6 total 171.1 acres of wetlands bordering Sumner Lake and the City's boundaries before annexation. Site 7 consists of 361 acres (264 acres of uplands and 97 acres of wetlands). (There is an approximately 70-acre County "enclave" in the middle of Site 7 which remained in Lake County.) Site 7 currently is used to grow citrus. It is connected to the City through the other three sites and Sumner Lake. At the time of annexation (and until City plan amendments are found to be "in compliance"),4 the future land use designation for Sites 4, 5, and 6 was Lake County Rural/Conservation. Site 7 had and still has its Lake County future land use designations. Its 97 acres of wetlands are designated Lake County Rural/Conservation, which allows one dwelling unit per 10 acres, while the 264 acres of uplands are designated as Lake County Transition, which allows one unit per 5 acres, or one unit per acre if the “timeliness” criteria under the Lake County Comprehensive Plan are met. These parcels were the subject of the City's FLUM amendments adopted on August 2, 2004. The FLUM amendments changed the designation of Sites 4, 5, and 6 from County Rural/Conservation to City Conservation. These City designations have been found to be "in compliance." The FLUM amendments also changed the future land use designation of Site 7's 97 acres of wetlands to City Conservation, and its 264 acres of uplands to City of Groveland Green Swamp Single Family Rural Development (GSRD), which allows two dwelling units per acre. With a transfer of development rights from the undevelopable wetlands to the developable uplands, which would be allowed under both the City's and the County's comprehensive plans, the maximum number of dwelling units allowed on Site 7 under the City's designation would increase to 532, up from the 57 allowed under the current County designations. Compliance Issues As indicated in the Preliminary Statement, DCA's Petition and SOI alleged that the City's Plan, as amended by the Site 7 FLUM amendment, is not "in compliance" because: (1) it is inconsistent with Rule Chapter 9J-5 because it fails to discourage the proliferation of urban sprawl, as required by Rule 9J-5.006(5); (2) it is internally inconsistent with the City's Future Land Use Element (FLUE) Policies 1-1.10.1 (land use allocation), 1-1.10.2 (promoting orderly compact growth), and 1-1.10.3 (coordination with Lake County to reduce urban sprawl), and Intergovernmental Coordination Element (ICE) Policy 7-1.1.3 (land use planning of adjacent lands); (3) it is inconsistent with the Green Swamp Guiding Principles; (4) it is inconsistent with Section 163.3177(6)(a) and (8), Florida Statutes, and Rule 9J-5.005(2)(a), because it does not react appropriately to the data and analysis on environmental site suitability; and (5) it is inconsistent with State Comprehensive Plan Public Facilities Goal 17(a) and Policies 17(b)1.-2. Urban Sprawl It is no longer disputed that there is a demonstrated need for the additional residential development allowed by the Site 7 FLUM amendment. The real contention by DCA is that the development should not occur at Site 7. DCA's urban sprawl argument focuses on five of the 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl": 4. 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 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. Fla. Admin. Code R. 9J-5.006(5)(g). Indicator 4 DCA's argument as to Indicator 4 is two-fold: Site 7 is surrounded by rural land; and increasing densities will harm the natural resources of the Green Swamp. Site 7 is immediately surrounded by generally rural uses. As indicated, wetlands and Sumner Lake are to the immediate northwest. Directly to the north of the northernmost portion of Site 7 is a sprayfield owned and operated by the City of Clermont. North of the sprayfield is an open water body. The east side of Site 7 adjoins a marshy area on the west side of Lake Palatlakaha. The south side of Site 7 abuts CR 565 and low wetlands areas, with Lake Wash and other rural lands and wetlands farther south. While immediately surrounded by rural lands (City Conservation, County Rural/Conservation, and County Transition), Site 7 is located approximately 3,000 feet (not three miles, as DCA's primary witness on this issue believed as late as her deposition in this case) south of State Road 50, a highly traveled, major road that connects West Central Florida to East Central Florida. Site 7 is in a fast-growing area less than two miles southeast of the center of the City. Immediately to the north of Sumner Lake is the Westwood residential subdivision which lies along the southern boundary of State Road 50. Existing homes are scattered around the sprayfield. Westwood is located within the City’s boundaries and in the Green Swamp. It has a future land use designation of Green Swamp Single Family Low Density Development (GSLD), which allows up to four single-family detached homes per acre. This corresponds to the Lake County Ridge designation it had at the time it was annexed into the City. Westwood currently is under construction, with many homes already occupied. Along the northern side of State Road 50 north of Westwood is a parcel within the City designated on the FLUM as Commercial, which is proposed to be used for a Publix grocery store, and the Green Valley Country Club, an existing golf course community. To the west of Site 7 is an existing golf course and water ski community known as the Swiss Ski School. It is located within unincorporated Lake County in the Green Swamp and has a Planned Unit Development (PUD) approval for 296 residential units. To the west of the Swiss Ski School lie Stewart Lake and Olsen Lake and their associated wetlands, which are in the Green Swamp in the unincorporated County and have County designations of Rural/Conservation and Transition. Farther west, along State Road 33 and still in the Green Swamp, lie developments having FLUM designations of GSSFLD allowing up to four units per acre. Both those developments lie within City limits. To the south of Site 7, and in unincorporated Lake County, with a County designation of Transition, lies a subdivision along Monte Vista Road which is vested for residential development partly at a density of two units per acre and partly at one unit per acre. Although there will be wetlands and Sumner Lake in City Conservation designations between Site 7 and developments to the north and west in the City, leapfrog development is not a concern for Site 7 and its surrounding area. To the extent Site 7 is separated from other urban or suburban uses in the City by lakes, wetlands, and conservation lands, no urban, suburban or even rural development of those conservation lands should be expected, so that "leaping over" those undeveloped lands should not be considered an indicator of sprawl. For these reasons, it is found that the Site 7 FLUM amendment is not premature. Nor is the conversion from agricultural use to residential use poorly planned. The development will be compact and orderly, and public facilities and services are available. Natural resources already receive a significant amount of protection in the plan. The development of Site 7 will promote conservation of natural resources by allowing only uplands to be developed onsite and allowing a density of up to two units per acre. A lower density would be an inefficient use of developable land. An inefficient land use pattern encourages the premature conversion of environmentally significant lands. Indicators 6 and 7 DCA's arguments as to Indicators 6 and 7 essentially are that some public facilities and services will have to be extended to Site 7, that there are places in the City capable of development using only existing public facilities and services, and that the City has planned for future public facilities and services elsewhere--namely, in the North Overlay, which is described below. As for existing public facilities and services (Indicator 6), development under the site 7 FLUM amendment will receive the same public services of law enforcement, fire, emergency services, and schools as are currently available to Site 7, at a lower residential density, under the existing Lake County Transition land use. Pursuant to an interlocal agreement with Lake County, the City already provides law enforcement services not only to Site 7 and surrounding areas in the City, but also to adjacent areas in unincorporated Lake County. As the City already provides public services in the area, it will be more cost-efficient to spread those costs among more homeowners. The proposed amendment will allow more homeowners to share these costs. DCA's only response to these facts, some of which were not known by DCA's expert witness, was that "the increased population on the site may require additional staff and facilities to serve the population." DCA's PRO, at 41. As for water and sewer, as indicated, a connection to central water and sanitary sewer is available at State Road 50, approximately 3,000 feet from Site 7 (a fact also not known by DCA's expert witness until shortly before the hearing). The developer will be required to pay for the cost of the new lines to Site 7. After those lines are installed, nearby property owners can voluntarily connect to central water and sewer. A few of the nearby property owners who have septic tanks have indicated an interest in connecting to the Site 7 sewer lines. For these reasons, the proposed amendment would result in an efficient use of central water and sanitary sewer facilities. As for future public facilities and services (Indicator 7), in 2003, as a result of a settlement agreement between the City and DCA on the City's 2003 plan amendment, the City proposed and adopted the "Groveland North Overlay" area and associated policies as a plan for future growth. The North Overlay was found to be "in compliance," is part of the City's FLUE, and is designated on Map 1-7 of the City’s FLUM series. The North Overlay is located to the north of the existing City limits and consists of several thousand acres. It is identified as an area in which future annexations are likely to take place in order to meet growth needs. The area is adjacent to parcels already annexed by the City, designated for urban densities, and planned for public facilities. It allows for a mix of uses. It shows that the City had identified a growth strategy to meet its need for the planning timeframe and beyond. It was established to ensure that, as land in the North Overlay was annexed into the City, new development would not develop as urban sprawl, but rather would be managed in a way which created a more effective land use pattern. While adopting the North Overlay, the City has a policy to annex land only on a voluntary basis. It does not exercise its rights under Section 171.0413, Florida Statutes, to require contiguous, compact unincorporated territory to annex. For this reason, it is difficult for the City to foresee with certainty which lands will annex into its municipal boundaries. In addition, starting in the mid-1990's, before adopting the North Overlay, the City began to annex land to the south in the Green Swamp. At that time, the City began the process of amending its comprehensive plan to include provisions to comply with the Principles for Guiding Development in the Green Swamp. In late 2000, the City embarked on a study to guide development and facilitate municipal expansion in the Green Swamp. The DCA provided funding for the study through a technical assistance grant. DCA also provided feedback for the study. The City hired a private consulting firm to do the study and produce a series of four quarterly reports. The final report is entitled "City of Groveland Small Area Study Final Report November 1, 2001." The Small Area Study considered an area of approximately 2,580 acres in the Green Swamp, which the City reasonably projected may be annexed. The geographic boundaries of the study were larger in the first three phases of the study, but were constricted for the final report at the request of DCA planner, Bob Dennis, to be closer to State Road 33. In addition, future annexations were projected to be phased, with areas closer to State Road 33 projected to occur before areas farther away from there. Site 7 is even farther away from State Road 33 and entirely outside the final boundaries of the Small Area Study. But the Small Area Study was not intended to bind the City, or restrict the City's annexation rights and powers, or change the City's policy of voluntary annexation. In other words, the projected annexations and phasing did not preclude consideration of out- of-phase or out-of-area annexations. The DCA grant required the Small Area Study to evaluate the area south of Groveland using several criteria, including upland area, utility availability and expansion, road/transportation network, Lake County land use designation, current land use activities, environmental assessment impacts, and the Green Swamp rules. The Small Area Study recommended that the City adopt two land use categories to apply to residential development in the Green Swamp: a land use category allowing a maximum of four units per acre, and another land use category allowing a maximum of two units per acre. A requirement of 60 percent open space and limitations on impervious surface for residential development also were recommended. For the protection of the Green Swamp and the Floridian Aquifer, the study also recommended that clustered development be encouraged and that central water and sewer be provided. The Small Area Study also recommended that wetlands be designated a Conservation land use. The Small Area Study also recommended that the plan require an upland buffer of 50 feet from the edge of the wetland line and that all development be prohibited in wetlands and floodplains. The City adopted those recommendations, as well as others. All of those plan amendments were found be DCA to be "in compliance." One of those amendments, FLUE Policy 1.3.11, prohibits any structure in the Green Swamp to be located within fifty feet of a wetland line. This requirement exceeds the St. Johns River Water Management District (SJRWMD) performance standards for wetland buffers, which require an average uplands buffer of 25 feet, with a minimum buffer of 15 feet, as well as the standard included in the plan’s Conservation Policy 7.3.5, which applies only to development located outside of the Green Swamp, and requires an average buffer of 50 feet, with a minimum buffer of 25 feet. FLUE Policy 1.3.3 and Conservation Policy 7.13.1 prohibit all development in the wetlands and floodplains for land located within the Green Swamp. This policy is more stringent than the Guiding Principles and Rule 9J-5. Rule 28- 28.008(1) provides performance criteria for development in flood-prone areas, which may be adopted in land development regulations applying in Lake County portions of the Green Swamp. Rule 9J-5.013(3)(b) requires that land uses be distributed to allow wetland impacts to be minimized and mitigated. The City also implemented the recommendations of the Small Area Study for the two residential land use categories. As already indicated, the City adopted the GSLD land use category, allowing a density of up to four units per acre. FLUE Policy 1.1.17. It also adopted the GSRD land use category in FLUE Policy 1.1.18, allowing a density of up to two single family detached homes per acre. Both categories require that at least 60 percent of the property remain in open space and that development be clustered on the least environmentally sensitive portions of the site. The amendments adopting the GSLD and GSRD land use categories were found by DCA to be "in compliance" and consistent with the Principles of Guiding Development in the Green Swamp. However, those categories were not yet assigned to all land considered in the Small Area Study, much less land outside its final boundaries. The appropriateness of GSRD for Site 7 is the issue in this case. Indicator 8 DCA's arguments as to Indicator 8 essentially focus on the timeliness provision in Lake County's Transition designation and the requirement to provide some new public facilities and services as a result of the City's Site 7 FLUM amendment. See Finding 4, supra. Development of Site 7 under Lake County's Transition designation would be limited to one unit per five acres. Site 7 would not qualify for development at one unit per acre under the timeliness provision, which requires more than 40 percent of the surrounding area within a mile radius, and 60 percent of the surrounding area within a two-mile radius, to be developed at a density of one unit per acre or greater.5 In addition, development of Site 7 under the City's FLUM amendment would make one unit per acre development of the 70- acre County "enclave" within Site 7 timely, which in turn may make one unit per acre development of other County land in the vicinity timely under Lake County's Transition designation. In effect, DCA fears that the City's Site 7 FLUM amendment will have a "domino effect" that will trigger rapid, wholesale conversion of rural County Transition land that can be developed at one unit per five acres to Transition land "timely" for development at one unit per acre. But DCA did not prove that its fear is reasonable. DCA also fears that the City's Site 7 FLUM amendment ultimately will result in too much residential development in the Green Swamp. But future County land use designation changes that will harm the Green Swamp will be subject to challenge by DCA. In any event, whether the City's FLUM change at issue in this case is timely depends on a number of factors besides just the timeliness provision of Lake County's Transition designation. Indicator 8 addresses allowing "land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services," not just patterns or timing that increases those costs. (Emphasis added). DCA did not prove that extending water and sewer lines will be a disproportionately high cost for the developer to pay and pass on to homeowners. The water and sewer lines will be placed along an existing right-of-way and will be required to be extended approximately 3,000 feet to reach Site 7. Longer lines have been installed within City limits. Also, as discussed above relating to Indicators 6 and 7, the Site 7 FLUM amendment will allow a greater sharing of expenses of facilities and services. Indicator 9 As to Indicator 9, there is some merit to DCA's argument that the Site 7 FLUM amendment fails to provide a clear separation between rural and urban uses. But this is partly because of the lakes and wetlands between Site 7 and those urban uses. In addition, there are some urban-like uses between Site 7 and other urban uses in the City. See Finding 14, supra. Internal Consistency DCA's Petition and SOI alleged that the Site 7 FLUM amendment is internally inconsistent with other parts of the City's comprehensive plan addressing urban sprawl considerations: FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3; and ICE Policy 7-1.1.3. After the Site 7 FLUM amendment was adopted, the City further amended its comprehensive plan. FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3 became, respectively: Policy 1.1.2; Objective 1.6 and Policy 1.6.1; and Policy 1.6.2. ICE Policy 7-1.1.3 was replaced by ICE Policy 11.1.1, and there was no objection to substituting the new, equivalent policy for purposes of this proceeding. FLUE Policy 1.1.2 states: The City shall designate land use on the [FLUM] to accommodate needs identified within the Comprehensive Plan supporting document (i.e., Data Inventory & Analysis). The City shall allocate a reasonable amount of land above identified needs to avoid economic impacts which a controlled supply of land places on land values and market potential. As found, it is undisputed that the Site 7 FLUM amendment is internally consistent with this policy. In its response to the ORC, the City adequately demonstrated that it had a need for additional residential land to accommodate its future population. Moreover, the ratio between the City's future land use needs and population growth is only slightly more than 1:1. The Site 7 FLUM amendment does not create an over- allocation of land uses in relation to its estimated population growth. Again, DCA's challenge is to the location of Site 7. FLUE Objective 1.6 states: "Discourage urban sprawl through a future land use pattern which promotes orderly, compact development." FLUE Policy 1.6.1 states: Land use patterns delineated on the [FLUM] shall promote orderly, compact growth. The City shall encourage growth and development in existing developed areas where public facilities and services are presently in place and in those areas where public facilities can provide the most efficient service. Land shall not be designated for growth and development if abundant undeveloped land is already present within developed areas served by facilities and services." Based on the findings as to the urban sprawl indicators, supra, DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Objective 1.6 and Policy 1.6.1, much less that internal consistency is beyond fair debate. FLUE Policy 1.6.2 states: "The City of Groveland shall coordinate with Lake County through a Joint Planning Agreement to develop an areawide [sic] planning approach by 2010, taking into account environmental suitability, functional relationships and areas where public facilities and services are available or proposed to be available by year 2020." ICE Policy 11.1.1 states: "The City of Groveland shall continue to work closely with Lake County, Lake County School Board, other municipalities and affected regional, state and national government agencies to coordinate the comprehensive planning effort of the City with those agencies affected, through the provision of information and participation on committees and working parties." DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Policy 1.6.2 or ICE Policy 11.1.1, much less that internal consistency is beyond fair debate. To the extent that internal consistency requires that the local government to comply with the intergovernmental coordination provisions in its comprehensive plan when it proposes and adopts plan amendments, DCA also did not prove that the City failed to do so, much less that its failure to comply is beyond fair debate. The City regularly coordinates its plan amendments with Lake County. The City provided a copy of its 2004-02 amendment package to Lake County when the amendment was transmitted to DCA, as was indicated to DCA in the transmittal amendment cover letter to DCA. A local government’s submittal to an adjacent local government of a copy of an amendment under review is a common way for a local government to coordinate amendments with other local governments. The City also regularly coordinates planning issues with Lake County and other Lake County municipalities by attending meetings of their planning departments. Obviously, the Site 7 FLUM amendment was adopted long before FLUE Policy 1.6.2's 2010 target for a joint planning agreement. At this time, there is no voluntary joint planning strategy with which it can be argued that this amendment is inconsistent. At the hearing, DCA was permitted to also argue internal inconsistency with new plan provisions adopted in July 2005, and found to be “in compliance” in September 2005 (but not provisions adopted in September 2005 and under DCA challenge at the time of the hearing).6 Newly adopted Sanitary Sewer Objective 5.3 reads: MAXIMIZE EXISTING FACILITIES AND DISCOURAGE URBAN SPRAWL. The City shall maximize existing sanitary sewer facilities within its service area and promote compact efficient growth patterns. This objective must be read in conjunction with related Sanitary Sewer Policy 5.3.1, which requires all new development in the City to connect to the central sanitary sewer system, as well as with FLUE Policy 1.1.18, which requires all development in land designated GSRD to connect to central water and sanitary sewer utilities. Density is related to the ability to provide central sewer and water services. If a developer runs new water and sewer lines, which he must do at his own cost in the City, compact density will make development more economical for those services and will encourage an efficient land use pattern. A density of two units per acre is financially feasible for providing central water and sewer to Site 7, whereas the evidence was that a density of one unit per five acres, as urged by DCA, is not cost-effective for Site 7, at least given the developer's $6.5 million land acquisition cost. As the use of septic tanks is not an option in the City for any new development, a contiguous and compact form of development is essential not only for the property in question, but also for future development sites. Development of Site 7 will be connected to an existing City-owned and operated wastewater treatment plant, which has adequate capacity for the maximum of 532 homes allowed by the amendment. As the amendment will allow a compact development pattern of two units per acre and will maximize the use of an existing sewer facility, it is not internally inconsistent with ICE Objective 5.3. Newly-adopted ICE Objective 11.2 requires the City to implement a strategy to ensure the efficient provision of urban services, sound urban development, and accommodation of growth. The objective identifies negotiating interlocal agreements with Lake County and other local governments for joint planning areas and for providing public services. ICE Objective 11.2 requires future intergovernmental coordination and is not self-implementing. The Site 7 FLUM amendment is not internally inconsistent with ICE Objective 11.2. Guiding Principles The Guiding Principles were adopted by rule by the Administration Commission in 1974 and subsequently were approved by reference by the Legislature. See Rule 28-26.003; Ch. 79-73, § 5, Laws of Florida (1979). Preceding Rule Chapter 9J-5 and modern Florida statutory requirements for local comprehensive plans, the Guiding Principles actually were adopted to provide guidelines for the adoption of land development regulations. See Rule 28-26.004 and Rule Chapter 28-28, Land Planning-Part VII Boundary and Regulations for the Green Swamp Area of Critical State Concern-Lake County; § 380.0551(2), Fla. Stat. The City's plan contains goals, objectives, and policies that are consistent with the Guiding Principles. Nonetheless, DCA contends that the Site 7 FLUM amendment is inconsistent with the following objectives to be achieved under the Green Swamp Guiding Principles, Rule 28-26.003(1): Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. * * * (j) Protect the natural flow regime of drainage basins.7 One of the primary reasons for designating the Green Swamp as an area of Critical State Concern is its relatively high aquifer recharge capabilities. This results from the relative proximity of the surficial aquifer to the ground surface, together with relatively high rate at which water percolates through the soils overlying the surficial aquifer. The relatively high aquifer recharge rate results in a relatively high potentiometric surface in the underlying Floridan aquifer (Central Florida's primary drinking water source) and drives the groundwater system throughout Central and Southwest Florida. Florida contains many areas of no recharge, but low- to-moderate recharge characteristics are common throughout Florida. Within the Green Swamp, there are areas of low, moderate, and high aquifer recharge, depending primarily on the proximity of the surficial aquifer to the ground surface and the characteristics of the overlying soils. In the area of Site 7, the surficial aquifer is approximately 150 feet below ground surface. Site 7 has both Type A (sandy, upland) soils, which have a high infiltration rate, and Type B (wetlands) soils. The area has been regionally mapped by SJRWMD as having a net recharge rate of 0-4 inches (low) on the western side of the site, and 4-8 inches (moderate) on the eastern part of the site. As such, these recharge characteristics of Site 7 can be said to be "common" for the Green Swamp. As for groundwater contamination, a map of the Floridan Aquifer Groundwater Vulnerability admitted into evidence by DCA showed that the groundwater for Site 7 and the surrounding area are "more vulnerable" to contamination. However, DCA did not present a map for other parts of the Green Swamp or the rest of Florida for comparison purposes, and its expert witness on the subject was unable to quantify vulnerability or directly compare Site 7 to other parts of the Green Swamp and the rest of Florida. However, he did testify that areas of "high vulnerability" extend all the way to the west of Tallahassee and that the western part of the Green Swamp generally is more vulnerable to groundwater contamination than the eastern part, where Site 7 is, because the surficial aquifer is at or near the ground surface in the western part of the Green Swamp. As to the natural flow regime of drainage basins, Site 7 lies in the Oklawaha River Drainage Basin. The natural local drainage of Site 7 is into the Palatlakaha River via several smaller drainage sub-basins: Sumner Lake Outlet, Palatlakaha Reach, Lake Wash Outlet, and Pine Island Outlets. The Palatlakaha is a major tributary to the Oklawaha River. DCA did not prove that the Site 7 FLUM amendment will adversely impact the natural flow regime of the drainage basin Site 7 is in. DCA did not prove that Site 7 has any hydrologic or environmental characteristics that would require more protection than other parts of the Green Swamp. It follows that DCA did not prove a need for Site 7 to have a lower density than is allowed under the GSRD land use category already approved by DCA for the Green Swamp. Similar residential densities also have been approved in other parts of the Green Swamp. A plan's goals, objectives and policies must be considered when evaluating the impacts of development allowed by a land use category. The FLUM, the goals, objectives, and polices are interrelated. See § 163.3177(6)(a), Fla. Stat. The hydrologic features and functions addressed in the Guiding Principles are protected in the plan, and those protections have been found by DCA to be consistent with the Guiding Principles. Those plan provisions will guide development to ensure that the aquifer, wetlands, flood detention areas, groundwater, surface water, Lake Sumner, and the natural flow of the drainage basin will be appropriately protected. The essence of DCA's argument that the Site 7 FLUM amendment is inconsistent with the Guiding Principles is that, regardless of how much protection the plan's provisions afford, the Site 7 FLUM will allow approximately ten times the various impacts of development--e.g., impacts on wetlands, reduction of aquifer recharge due to increased impervious surfaces, water quality impacts, and water quantity impacts-- at one unit to five acres under the current Lake County Transition designation, so that adverse impacts are not minimized, and resources are not protected, as envisioned in the Guiding Principles. There are several flaws in DCA's argument, even assuming the impact factor of ten. First, the logical extension of DCA's argument would be that minimization and protection require no additional adverse impacts. If so, development at one unit per acre under Lake County Transition's timeliness provisions--a fivefold increase in impacts, under DCA's rationale--also would be inconsistent with the Guiding Principles. Second, planning should be based on reality,8 and DCA did not prove that residential development would occur on Site 7 at one unit to five acres. To the contrary, while continued development of small parcels in areas designated Lake County Transition is plausible, the evidence was that it is financially infeasible to develop Site 7 as a whole residentially at that density.9 For that reason, while ordinarily it is appropriate only to compare potential impacts from different possible land use designations, in this case it is appropriate to consider the impacts of the current use of Site 7 as an orange grove when deciding whether the Site 7 FLUM amendment is consistent with the Guiding Principles. The evidence was clear that, under all the criteria in the Guiding Principles cited by DCA, residential development under the Site 7 FLUM amendment is far preferable to the continued use of the property as an orange grove10--the likely if not absolutely clear result of maintaining Lake County's Transition designation.11 Third, as mentioned in Finding 57, supra, it was clear from the evidence that DCA has found residential land use designations of two units per acre and greater not only elsewhere in the Green Swamp, both in the City and elsewhere, to be consistent with the Guiding Principles, and DCA failed to explain why those densities would be consistent with the Guiding Principles elsewhere but not at Site 7. Again under this issue, DCA in effect fears that the City's Site 7 FLUM amendment will have a "domino effect" that will ultimately result in the entire Green Swamp being designated for two-unit per acre residential densities. But the entire Green Swamp is not like Site 7. Future County land use designation changes that actually will harm the Green Swamp will be subject to challenge by DCA, and it is unreasonable to assume that DCA will allow densities of two units per acre throughout the Green Swamp if it is allowed at Site 7. Environmental Suitability For essentially the same reasons DCA argues inconsistency with urban sprawl rules and plan provisions and with the Guiding Principles, DCA also contends that the City did not react appropriately to data and analysis indicating Site 7's alleged environmental unsuitability for residential development at two units per acre. Based on the previous findings, DCA did not prove that allegation.12 State Comprehensive Plan DCA alleges that the Site 7 FLUM amendment is inconsistent with the State Comprehensive Plan's Public Facilities goal and two related policies. Public Facilities Goal (a) addresses the need to protect substantial investments in existing public facilities. Related Policy (17)(b)1. provides incentives for developing land in a way that maximizes the uses of existing public facilities. Public Facilities Policy 17(b)2. promotes the "rehabilitation and reuse of existing facilities, structures, and buildings as an alternative to new construction." As discussed above in the urban sprawl findings, the Site 7 FLUM amendment encourages the efficient use of existing public facilities. The increase in density, which the amendment allows, may be viewed as a land use incentive that encourages the maximization of existing public facilities both as to Site 7 and as to surrounding properties that may later connect to City utilities. The amendment furthers Public Facilities Goal (a) and Policy (b)(1). The Site 7 FLUM amendment also does not undermine or conflict with Policy (b)(2). The City’s plans to rehabilitate a downtown community redevelopment area (CRA) will not be adversely affected by development allowed by the proposed amendment. Also, there is insufficient land within the CRA to accommodate the City’s projected housing and land use needs. The amendment is not inconsistent with this policy.
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 City's Site 7 FLUM amendment to be "in compliance." DONE AND ENTERED this 28th day of November, 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 November, 2005.
The Issue The issue is whether a change on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Respondent, Manatee County (County), by Ordinance No. 09-31 on August 11, 2009, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the County. The County is a local government that administers its Plan, which it amends from time to time. The County adopted the Ordinance which approved the change in the FLUM being challenged here. Petitioner is a Florida limited liability company with offices located at 4379 Ocean Boulevard, Sarasota, Florida. It owns property in the County. Petitioner appeared at the transmittal hearing for the amendment and submitted comments on the record in opposition to the amendment. FBE is a Florida limited liability company and has contracted to purchase the subject property from Patron. It operates a renewable energy development company in the County. It submitted comments to the County during the adoption process. Patron is a Florida limited liability company that owns the subject property. It submitted comments in support of the plan amendment during the adoption process. History of the Amendment On March 27, 2009, FBE (as agent for Patron) filed a Land Development Application (application) with the County Planning Department requesting approval of a FLUM change for the property from IL to P/SP(1). See Joint Exhibit 1. The existing IL land use authorizes office, light industry, research/ corporate parks, warehouse distribution, intensive commercial uses, neighborhood retail uses, hotel/motel, selected single- family, and residential uses. See Joint Exhibit 12. The Plan describes the general range of potential uses under the new category as recreational uses, sanitary landfills, permanent water and wastewater treatment/storage/disposal facilities, and other public facilities including, but not limited to, public airports, major maintenance facilities, solid waste transfer stations, and major utility transmission corridors. Id. Residential uses are not allowed. One intent of the P/SP(1) category is to recognize facilities associated with private utilities, such as the biomass plant proposed by FBE. Id. The application indicated that FBE intends to operate a sixty-megawatt biomass integrated power plant on the property and to continue to retain all uses allowed by the IL category. (In contrast to a power plant that uses coal or oil to generate electricity, a biomass plant uses renewable energy sources such vegetative materials to create electric energy.) The power generated at the facility will be sold to Progress Energy Florida, an investor-owned public utility. The application was accepted, numbered PA-09-08, and assigned Ordinance No. 09-31. Sometime in early April 2009, a staff report was prepared by the County's Principal Planner, Leon Kotecki, which included land use characteristics and development trends, plan amendment justification, and positive and negative aspects of the application and mitigating factors. See Joint Exhibits 5 and 6. The staff report also included what is described as a Plan Amendment Detailed Review and Land Planning Analysis that discussed services and natural features, urban development considerations, and consistency with the Plan, the State Comprehensive Plan (State Plan), Florida Administrative Code Rule Chapter 9J-5,1 and relevant portions of the Florida Statutes (2009).2 The report recommended that the application be approved. In making this favorable recommendation, the planner compiled and reviewed data on land compatibility, traffic impacts, and water and sanitary uses. He also took into account the topography of the site, how the Coastal High Hazard Area (CHHA) affected the site, its proximity to Port Manatee, and the surrounding uses. On April 4, 2009, the County published an advertisement of a public hearing on the application in the Bradenton Herald and the Sarasota Herald Tribune. Also, letters were sent to all property owners within 500 feet of the proposed amendment. Petitioner received personal notice of the amendment by letter dated May 20, 2009. On April 16, 2009, the Planning Commission conducted a hearing on the plan amendment and by a 4-1 vote recommended transmitting the amendment to the Board of County Commissioners. On April 21, 2009, the Board of County Commissioners conducted a public hearing and voted 6-0 to transmit the proposed amendment (as a part of a larger amendment package) to the Department for its review. On June 29, 2009, the Department issued its Objections, Recommendations, and Comments (ORC) report for a series of map amendments, including the biomass project. See Joint Exhibit 4. In the ORC, the Department lodged an objection regarding the lack of sufficient planning guidelines as required by Future Land Use Element (FLUE) Policy 2.2.1.22(4)(b)(i), specifically noting that the amendment did not restrict the property to a particular use. Id. at p. 3. That policy requires that an amendment for a proposed P/SP(1) category include a declaration of the specific use for which the P/SP(1) category is sought. The ORC also indicated that the amendment was not consistent with various goals, policies, and objectives in the State Plan for the reasons cited in the Objections portion of the ORC. Id. at pp. 3-4. The ORC recommended that the amendment include site-specific policies establishing meaningful and predictable guidelines and standards to guide development on the site. Id. at p. 3. After receipt of the ORC, the County revised the plan amendment by including a text amendment containing ten conditions (stipulations) that would apply if the property was developed as an electric generating facility using biomass fuels and/or solar energy. These conditions were included in the adopting ordinance as a new Section D.5.4 in the General Introduction Chapter and are a part of the Plan. See Joint Exhibit 10 at pp. 4-5. The new section provides that the property is limited to an "electricity generating facility using only biomass fuels and solar energy retaining the light industrial uses as provided for in the former IL Industrial Future Land Use Category applicable to the site." Id. at p. 4. The section further provides that the ten conditions are "minimal requirements" and that further conditions may be added during the development process, as necessary. Id. at p. 5. Thus, future stipulations at a later date can exceed the minimum requirements in the County's Land Development Code. On August 11, 2009, the County conducted a public hearing and adopted Ordinance No. 09-31, with the changes presented by its staff. On September 29, 2009, the Department published its Notice of Intent to find the amendment in compliance in the Bradenton Herald. On October 20, 2009, Petitioner filed its Petition challenging the map change and text amendment. The issues have been more narrowly defined in its Proposed Recommended Order and can be summarized as follows: the amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and is inconsistent with Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it impermissibly allows IL uses in the P/SP(1) land use category; the amendment is inconsistent with Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes, because it impermissibly expands the uses in the P/SP(1) category by including IL uses and does not contain the required intensity standards; the amendment is internally inconsistent with FLUE Policy 2.2.1.22.4.(b)(i) because it fails to declare a specific use for the IL uses; the amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3); the amendment is inconsistent with the requirements of Rules 9J- 5.006(2)(b) and 9J-5.005(2)(a) and Section 163.3177(6)(a), Florida Statutes, because it is not based on an analysis of the best available data regarding the suitability of the site for a biomass facility; and the amendment is inconsistent with the requirements of Rule 9J-5.005(2)(a) because it was not based on an analysis of the best available data for compatibility with residential uses in the surrounding area. The Property and Surrounding Uses Patron's property consists of around 44.4 acres and is located at 11551 and 11805 U.S. Highway 41 North in the northwest part of the County, just south of the Hillsborough County line. The eastern side of the property adjoins U.S. Highway 41, a major four-lane highway running north-south, while property owned by CSX Corporation (CSX), including an active railroad track, and then a large drainage canal border the site on its western side. (The railroad track is around one-quarter mile west of U.S. Highway 41.) West of the canal is agricultural land and a large parcel owned by Port Manatee designated as IL but used as conservation lands. To the south (in IL-designated land) lies an aircraft parts manufacturing facility owned by Trielectron Industries, which shares a boundary with Petitioner's property. To the north, the site adjoins property owned by Florida Power & Light Company, on which a substation is located. FBE plans to connect its power plant to the electric grid through this substation. The property is bisected by Armstrong Road, an unpaved County-maintained road running east-west, which provides access from U.S. Highway 41 to Patron's property and the land just west of the CSX property. Approximately one-third of the property lies north of Armstrong Road, while the remaining two-thirds lie south of the road. The southern 450 to 500 feet of the site consists of wetlands, forests, and vegetation, which serve as both a distance and visual buffer to uses to the south and southwest. (Because of these wetlands, a biomass plant would have to be constructed on the middle of the site.) Immediately west of the CSX property is an unpaved road that turns south to provide access to row crop fields and then to an 88-acre, rectangle-shaped parcel owned by Petitioner. Port Manatee, a deepwater seaport connected to the Gulf of Mexico through Tampa Bay, is less than a mile north of the site. The area between Port Manatee and Patron's property contains port-related uses which are mostly industrial uses such as construction yards and an aggregate plant. To the east of the port is a closed phosphate processing plant and associated phosphogypsum stacks, which are the remains after the phosphate is processed. The existing zoning on the property is Planned Development Encouragement Zone (PDEZ). The existing uses allowed under that category include a range of light and heavy industrial uses and are listed on the General Development Plan approved by the County on December 4, 2008. See County Exhibits 13 and 24. This information is relevant here because the zoning classification is consistent with the County's intent to focus heavy industrial uses within close proximity to Port Manatee. Development trends in the area of Port Manatee and the Patron property are predominately industrial. All of the surrounding development is either light or heavy industrial uses with the exception of six single-family homes located on Chapman Road, which terminates on the eastern side of U.S. Highway 41 just south of the site and extends eastward. The homes are located in a strip of land extending east on Chapman Road for a quarter mile or so and south for around a mile on the eastern side of U.S. Highway 41 that is classified as Retail/Office/ Residential (ROR). That category allows a range of uses including retail, wholesale or commercial uses, and public or semi-public uses. Thus, the residential units have the potential to eventually transition to nonresidential uses without a map change. There remain a few open parcels of land in the area that are available for additional development. Petitioner's property comprises around 88.7 acres. The southwest corner of Patron's property lies around one- quarter mile from the northeast corner of Petitioner's property. Counting the 450-foot green space on the southern end of Patron's property, the distance between the site of the plant and Petitioner's main parcel is around 1,900 feet. Petitioner also owns a narrow strip of land extending northward from the main parcel to Armstrong Road. This strip adjoins the western side of the CSX railroad track and provides access to the property from U.S Highway 41. On November 30, 2004, the County approved a residential project for Petitioner's property and rezoned the land from Suburban Agriculture and Suburban Agriculture/Coastal High Hazard Overlay District to Planned Development Residential/ Coastal High Hazard Overlay District. The project is known as the Estates at Bishop Harbor. The Preliminary Site Plan for the property depicted 66 lots for single-family detached residences. Before any development occurred, however, the original developer defaulted on the mortgage held by Petitioner, a foreclosure occurred, title to the property reverted to Petitioner, and no development ever occurred. The property is still vacant. At the time of the hearing, Petitioner had an application pending before the County to change the land use designation on 83.31 acres from Residential-1 (one dwelling unit per acre) to IL. The outcome of that application is unknown. The remaining 5.39 acres are already designated IL. Based on these circumstances, it is fair to infer that the long-delayed construction of the planned residential subdivision is questionable. Stipulation 6 of the approval of the change in land use on Petitioner's property was a requirement that a Notice to Buyers be included in the Declaration of Covenants and Restrictions and in the sales contracts or a separate addendum to the sales contracts and final site plans that includes language informing prospective homeowners that there are neighboring industrial uses and the potential for future industrial development including possible truck traffic and noises associated with industrial uses. Petitioner's Objections Petitioner first contends that the plan amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and inconsistent with the requirements of Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it permits light industrial uses in the P/SP(1) land use category. Petitioner argues that IL uses are not permitted in the P/SP(1) category. It also argues that by failing to include specific intensity standards in the amendment for the allowed IL uses, the amendment is inconsistent with the requirements of Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. The rule requires that the FLUE contain policies regulating land use categories included on the FLUM and establishing standards for intensities of use for each future land use category. The statute requires that each land use category be defined in terms of uses allowed and include standards to be followed in the control and distribution of building and structure intensities. Policy 2.2.1.22 establishes the P/SP(1) land use category; Policy 2.2.1.22.1 describes the intent of the category; Policy 2.2.1.22.2 describes the general range of potential uses in the category; and Policy 2.2.1.22.3 provides the range of potential intensity for the category. The general range of potential uses in the P/SP(1) category include: Recreational uses, sanitary landfills, permanent water and wastewater treatment/ storage/disposal facilities and other major public facilities including but not limited to, airports owned or operated by a public entity, major maintenance facilities, solid waste transfer stations, [and] major utility transmission corridors. Also, when the P/SP(1) designation is an easement on privately-held property, other uses consistent with the adjacent future land use category or categories, where consistent with the purpose of the easement and consistent with all other goals, objectives, and policies of this Comprehensive Plan, may also be considered. (See also Policy 2.1.1.5) Policy 2.1.1.5 provides further clarification on the allowed uses in this category by requiring that the County ensure the availability of sufficient land in the P/SP(1) category "to allow development of major public or semi-public uses (e.g., electrical generation facilities . . .) in appropriate areas when compatible with surrounding development." Joint Exhibit The Plan permits light industrial uses within the P/SP(1) category. Notwithstanding the broad range of uses described above, FLUE Policy 2.2.1.5 provides the County with more flexibility in determining the appropriate uses for any given plan category. The policy states that the future land use category listings of uses are "generalized," they are not "all inclusive," and they "may be interpreted to include other land uses which are similar to or consistent with those set forth in the general range of potential uses." See Joint Exhibit 12. IL uses are similar in character and intensity to the type of uses listed in the P-SP(1) category. Because the property was classified as IL before the amendment, all of the IL uses in that category have been evaluated and determined by the County to be appropriate in terms of location, impact, and intensity. For these reasons, it is fairly debatable that the plan amendment is consistent with FLUE Policy 2.2.1.22.2, Rule 9J- 5.006(3), and Section 163.3177(6)(a), Florida Statutes. Likewise, the P-SP(1) category has a broad range of uses in terms of intensity, and even though the amendment does not contain specific intensity standards for the IL uses, the Plan contains other provisions required by Chapter 9J-5 to ensure compatibility between any future uses on the site and the surrounding properties in terms of intensity. Therefore, it is fairly debatable that the plan amendment is consistent with Rule 9J-5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. Petitioner further argues that the plan amendment is inconsistent with FLUE Policy 2.2.1.22.2.4(b)(i), which requires that "[a]n applicant shall be required to declare a specific use or uses for a specific piece of property for which the applicant is proposing to amend the existing future land use category to P/SP(1)." Petitioner argues that while FBE has identified one specific use for the P/SP(1) category -- a biomass plant -- it has not declared the specific use or uses which FBE is proposing under the IL category. Because the light industrial uses allowed under the IL category remain the same as before the amendment, and were previously evaluated when the Plan was originally adopted in 1989, it is fairly debatable that the amendment is consistent with FLUE Policy 2.2.1.22.2.4(b)(i). The generalized reference to IL uses is adequate since it merely recognizes uses already approved and in effect. In its Proposed Recommended Order, Petitioner also contends that the plan amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3) because the County's five-year Capital Improvements Program contains no programmed improvements for U.S. Highway 41. The rule requires that there be a transportation analysis to support a FLUE amendment. However, this issue was not raised in the parties' Stipulation and need not be addressed. See Heartland Environmental Council, Inc. v. Dept. of Comm. Affrs., et al., Case No. 94-2098GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996, DCA Nov. 25, 1996)("[a party] is bound by the allegations in its Petition for Hearing . . . as further limited by the Prehearing Stipulation"). Even if it was a viable issue, the evidence shows that during the review and adoption process, the County relied upon a Florida Department of Transportation traffic analysis link sheet for February 2009 and information supplied by the applicant, which show that the current levels of service (LOS) on U.S. Highway 41 are A and B, that the projected number of peak hour trips will actually result in an overall net decrease in trips when compared to the existing Plan category, and that no capital improvements are needed. See Joint Exhibit 2 at pp. 14-15; Joint Exhibit 4. An assertion by Petitioner that the LOS on U.S. Highway 41 may deteriorate if a biomass plant is not built and the IL uses are developed to their maximum potential is speculative at best and not supported by the evidence. Petitioner next contends that the amendment is inconsistent with the requirements of Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.005(2)(a) and 9J-5.006(2)(b) because it was not based on the best available data regarding the suitability of the site for the biomass facility. The statute requires that the FLUE be based on "surveys, studies and data regarding the area, including . . . the character of undeveloped land." Rule 9J-5.005(2)(a) requires that the amendment be based on relevant and appropriate data and analysis, while Rule 9J-5.006(2)(b)3. requires that the amendment be based on an analysis of the character of the land in order to determine its suitability for use, including the topography of the site. In support of this argument, Petitioner points out that when the County planner reviewed the amendment, he assumed that less property was within the CHHA than was depicted on the FLUM, that a majority of the property was at or above 10 feet in elevation, and that it would not flood in a Category I storm event. The planner reached this conclusion based on a review of large-scale United States Geological Survey (USGS) topographic maps and Light Detecting And Ranging (LIDAR) maps. However, an undated topographic survey (prepared for an earlier prospective purchaser of the Patron property and given by Patron to FBE when it signed a contract to purchase the property) and a technical memorandum prepared by FBE's consultant, Golder Associates, Inc., on March 31, 2009, reflected that much of the property lies within the CHHA at an elevation of five feet or less, or below the 5.8-foot storm surge elevation for a Category I storm event. This information was in the personal files of FBE's president and its out-of-town consultant and was not given to the County prior to the adoption of the amendment. Petitioner argues that this information is the best available data, and that if the County had been given these documents during its review process, it would have determined that the Patron property was not suitable for industrial uses. The County was not given the survey and memorandum prepared by the FBE consultant because that information was prepared only for use at the site plan review stage. This is not unusual since the County does not require signed and sealed surveys and engineering reports during the amendment process. While the data were in existence prior to the adoption of the map change in August 2009, they were not disclosed until a few days before final hearing (through discovery) and consequently were not "available for public inspection" prior to the amendment's adoption. After analyzing the new data (over objection of opposing counsel) for the first time at hearing, the County planner indicated that if he had known that the elevation was lower than that depicted on the USGS maps, he would have "given [the application] closer consideration." Even so, he emphasized that his recommendation would still be the same because any development on the site can be protected during the development process by berms, suspension of units aboveground, and other development standards. Assuming arguendo that the data were "available for public inspection" and should have been considered for that purpose, given the rigorous standards that apply during the site approval process, it is still fairly debatable that the amendment is supported by adequate data and analysis as to the suitability of the site and that the County reacted to it in an appropriate manner. Similarly, Petitioner points out that the technical memorandum prepared by FBE's consultant on March 31, 2009, revealed that the soils on the site are not suitable for a heavily loaded structure such as a biomass plant. Therefore, it argues that the amendment was not based on professionally acceptable data and analysis with respect to the suitability of the property to support a biomass plant, as required by Section 163.3177(6)(a), Florida Statutes, and Rules 9J- 5.005(2)(a) and 9J-5.006(2)(b)2. The latter rule requires a land use analysis for soils in order to determine the suitability of proposed uses on the site. In addressing this issue in the staff report, the planner relied upon the 1983 Soil Survey of Manatee County and determined that the property had three types of soil: Bradenton Fine Sand; Chobee Loamy Fine Sand; and Wabasso Fine Sand. See Joint Exhibit 2 at p. 17. He further determined that these three soils are "poorly drained, level to nearly level, sandy to loamy, and underlain by sandy marine sediment and limestone." Id. However, because several heavy industries are already operating adjacent and within the immediate surrounding area with the same type of soil limitations, he concluded that the soil limitations could be "overcome by the proper design of drainage facilities and engineering design of buildings." Id. It is fairly debatable that the data and analysis are adequate to support the amendment in this respect, and that the County reacted to that data in an appropriate manner. Petitioner further argues the amendment violates Rule 9J-5.005(2)(a) because it is not based on a compatibility analysis of the industrial uses with the residential uses in the surrounding area. Like the preceding two objections, this one is framed in terms of a lack of the best available data to support the amendment. In its Proposed Recommended Order, Petitioner also cites as being relevant to this objection FLUE Policies 2.1.1.5 and 2.2.1.22.4.(b)(i), which require that a change in land use to P/SP(1) only be made "in appropriate areas when compatible with surrounding development," and that an applicant "provide information and analysis on the compatibility of the proposed use or uses . . . with surrounding development." Petitioner points out that there are six single-family homes, characterized by one expert as an "artifact" from an earlier era, that extend out one-half mile along Chapman Road to the east/southeast of Patron's property, and that the County failed to consider the compatibility of industrial uses with those homes. It also argues that the County's analysis was based on the construction of a sixty-megawatt facility, as proposed by FBE, and did not consider a larger, more intense facility. In making its compatibility analysis for the surrounding area, the County considered all residences on Chapman Road extending out eastward a quarter to a half mile, which included the six houses in question. With the exception of the six houses, the data relied upon by the County reflected that the entire surrounding development is either light or heavy industrial uses, which is consistent with the County's focus to encourage industrial development in the Port Manatee area. The six houses are in a strip of land designated as ROR, which allows a mix of retail, office, and residential uses. Some of the existing uses that are near the homes, and within the ROR category, are considered "intensive." Given this type of development, it is highly unlikely that more homes will be constructed in the ROR area. If and when a biomass plant is constructed, existing development standards will be used to ensure compatibility with the ROR uses. Petitioner did not refute this evidence. When considering the area and uses as a whole, it is fairly debatable that there are adequate data and analysis to support a determination that the new land use will be compatible with the residential uses in the surrounding area. All other issues raised by Petitioner and not addressed herein have been considered and found to be without merit.
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 denying USFG's Petition and determining that the plan amendment adopted by Ordinance No. 09-31 is in compliance. DONE AND ENTERED this 28th day of July, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 28th day of July, 2010.
The Issue Whether the small-scale amendment to the Future Land Use Map (FLUM) of the City of St. Petersburg's (the City) Comprehensive Plan (Comprehensive Plan), adopted by Ordinance 739-L (Ordinance) on August 13, 2020, is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2020).1
Findings Of Fact The Parties and Property Petitioner, PGSP, is a membership organization, with 118 members. It is registered with the State of Florida as a not-for-profit corporation located in St. Petersburg, Florida. PGSP's stated mission is to promote healthy urban development throughout St. Petersburg; it was formed to promote development and growth compatible with surrounding neighborhoods. It works with the City and residents to ensure new development is cohesive with existing and planned environmental and infrastructural demands. Respondent, City of St. Petersburg, is a political subdivision of the State of Florida that is subject to the requirements of chapter 163, Part II, Florida Statutes. The subject property is located at 635 64th Street South, St. Petersburg, Pinellas County, Florida (Property). It is owned by Grace Connection of Tampa Bay, Inc., operating as Grace Connection Church (Church). The Church was the applicant for the Amendment at issue but is not a party to this action. The Property is triangular in shape with a total of 4.66 acres. To the north and west, the Property is bounded by Bear Creek, a natural water feature. To the east, the Property is bounded by 64th Street South, a "Collector, City Road." To the south, the Property is bounded by an undeveloped 40-foot right-of-way. A portion of the Property that abuts Bear Creek is located in a Coastal High Hazard Area (CHHA).3 Respondent has not sought changes to the portion of the Property that is within the CHHA. 3 The Property is also within the projected storm surge in Hurricane Evacuation Level "D," which is a Pinellas County emergency management designation, and not a part of the City's Comprehensive Plan. The Property is currently categorized for Neighborhood Suburban (NS-1) zoning (which is separate from its Future Land Use Category). A substantial number of PGSP members live within the City, in close proximity to the Property and allege they will be adversely affected by the concomitant impacts of increased densities in the community as addressed in these proceedings. The Ordinance The Church's application sought to amend the FLUM of the Comprehensive Plan. The application divided the non-portion of the CHHA into three portions and sought to make the following changes to the Future Land Use categories: A PORTION OF THE SUBJECT PROPERTY (APPROX. 4.33 ACRES), FROM I (INSTITUTIONAL) TO RM (RESIDENTIAL MEDIUM); A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.21 ACRES), FROM I (INSTITUTIONAL) TO RU (RESIDENTIAL URBAN); AND A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.04 ACRES), FROM RU (RESIDENTIAL URBAN) TO RESIDENTIAL MEDIUM (RM). On August 13, 2020, the City Council had a public hearing on the Church's appeal of the denial of its application by the Planning Commission. At this hearing, PGSP members submitted oral or written comments, recommendations, or objections to the City. At the August 13 meeting, the City Council adopted the Ordinance. This had the effect of adopting the Amendment and changing the Future Land Use categories to the Property. The Ordinance instituted a small-scale amendment to the FLUM, as defined by section 163.3187(2). Maximum Density Petitioner argues the Ordinance is not "in compliance," as defined in sections 163.3184(1)(b) and 163.3187(4). Specifically, PGSP attacks the Amendment because it does not (1) direct "population concentrations" away from areas designated as a CCHA; (2) provide for compatible land use transitions; and (3) preserve the existing character of the surrounding areas. Each of these claims are either partially or wholly dependent on the increased maximum density for the Property after the Amendment. As such, the threshold issue of density must be addressed. This dispute involves the 4.37 acre that are changed from the Residential Urban (RU) and Institutional land use categories to Residential Medium (RM) made up of approximately 4.33 acres from Institutional to RM and approximately 0.04 acres from RU to RM. The "Institutional" designation allows a density of 12 dwelling units per acre but limits residential use as an accessory to the primary institutional use, which in this case is a church.4 The Church submitted the application for the FLUM amendment because it ultimately seeks to sell the Property for multi-family housing development, which would not be a proper use in an area designated "Institutional." The Future Land Use categories for the area to the north and east of the Property are RU, which have a density of 7.5 units per acre. See Comprehensive Plan Policy LU 3.1A.2. This area is primarily made up of single-family homes. The southern boundary of the property is also the municipal border between St. Petersburg and an unincorporated portion of Pinellas County. This area is governed by the Pinellas County FLUM and Pinellas County Comprehensive Plan. The adjacent property to the south is a mobile home park development which has a residential density of 20.4 units per acre. 4 Pursuant to section 16.10.020.2 of the City's Code, Institutional uses include, "government buildings and grounds, and cemeteries, hospitals, houses of worship and schools." In between the RU and RM categories is a category labeled "Residential Low Medium" (RLM). The RLM category allows low to moderately intensive residential development with a density not to exceed ten dwelling units per acre. See Comprehensive Plan Policy LU 3.1A.3. As stated above, the Ordinance would categorize the portion of the Property at issue as RM. The RM category allows medium density residential development and has a maximum density of 15 dwelling units per acre, with a possible maximum density of 30 dwelling units per acre with the qualification of a density bonus. See Comprehensive Plan Policy LU 3.1A.4. PGSP argues the density of the areas designated as RM by the Ordinance will have a maximum possible density of 30 dwelling units per acre. The City argues the maximum density is calculated using the actual density that can be built in the RM areas. As explained below, the practical allowable density of 15 dwelling units per acre with a Workforce Housing Bonus of six, or 21 dwelling units per acre. Petitioner relies on a "Missing Middle Housing" density bonus allowable in Neighborhood Traditional Mixed Residential (NTM) zoning category. This bonus allows up to 30 units per acre as an incentive to develop housing that is lacking in the area. While NTM is an available zoning category for RM, the Plan specifically states that 30 dwelling units per acre is only "permitted in accordance with the Land Development Regulations [LDRs]." Per the LDRs, the NTM designation could not be placed over this parcel because the designation is used as a transitional zoning category in St. Petersburg's traditional neighborhoods. While PGSP's planning expert considered the neighborhood surrounding the Property to be traditional, he admitted his opinion was not based on standards in the Comprehensive Plan or LDR definitions regarding what is considered a traditional or suburban neighborhood. In contrast, Derek Kilborn, a manager in the City's Planning Department, testified about the different characteristics of traditional versus suburban neighborhoods and opined that the neighborhood surrounding the Property is "suburban" according to the terms in the Comprehensive Plan. This determination is bolstered by the existing zoning of the surrounding neighborhood being largely NS-1. The City established it would be impossible for the Property to qualify for the Missing Middle Housing bonus, because the parcel at issue is not in the NTM zoning category. Rather, as explained by Mr. Kilborn's testimony and based on the LDRs and the Comprehensive Code, the RM category only allows a maximum of 15 dwelling units per acre. The Church has not applied to rezone the Property. The Planning Department's director testified, however, that if the Church had applied for a rezoning for the Property to NTM, the maximum number of dwelling units would be less than the numbers asserted by Petitioner due to the requirements for spacing, alleyways, and height restrictions required in NTM zones. The Property is eligible for a Workforce Housing density bonus. This bonus would increase the maximum density by six dwelling units for workforce housing. The City's final density calculation incorporated the Workforce Housing bonus and determined the maximum density for the RM portion of the Property to be 21 dwelling units per acre. PSGP did not prove beyond fair debate that the actual density of 21 units per acre is an erroneous calculation or contrary to the Comprehensive Plan. Consistency with Objective CM 10B and Policy CM 10.65 Comprehensive Plan Objective CM 10B states: The City shall direct population concentrations away from known or predicted coastal high hazard areas consistent with the goals, objectives and policies of the Future Land Use Element. The phrase "Population concentrations" is not defined by the Comprehensive Plan. The only policy referring to "directing" related to Objective CM 10B is Policy CM 10.6, which states: The City shall direct population concentrations away from known or predicted coastal high hazard areas by not locating water line extensions in the coastal high hazard area, beyond that which is necessary to service planned zoning densities as identified on the Future Land Use Map. The remaining policies related to this Objective involve the placement of transportation and infrastructure, expenditures for flood control, and the operation of roads in a CHHA; none of these issues were raised in these proceedings. In fact, other than the reference to placement of water line extensions in Policy CM 10.6, there is no provision establishing standards for what would constitute direction away from a CHHA. The only area on the Property designated a CHHA is near Bear Creek.6 The Ordinance does not increase density in any part of the CHHA portion of the Property. PGSP's planning expert, Charles Gauthier, equated a population concentration as an area with high density. He argued the Ordinance 5 "CM" means Coastal Management in the Comprehensive Plan. 6 Mr. Kilborn testified that in reviewing the property for compliance with the Plan related to CHHA, there was no study or analysis provided to the City by Petitioner or others showing flooding or hazard impacts for the non-CHHA portion of the Property. violated Policy 10.6 because it increased the density of the area on the Property adjacent to the CHHA. At one point, Mr. Gauthier seemed to say this policy encourages higher density future land use categories only in the "central core or spine of the City." Mr. Gauthier maintained the increase in density on the non-CHHA portion of the Property frustrated this policy because only land in the central part of St. Petersburg should experience density increases. PGSP's reasoning would imply any increase in density near any CHHA and not near the "central core" would violate Policy CM 10.6. Elizabeth Abernethy, Director of the Planning Department, testified that "population concentrations" as contemplated by the Comprehensive Plan are not simply increases in density. Rather, the City core had a concentration of high-density categories yielding approximate 80 to 120 dwelling units per acre; she would not characterize 15 or even 30 units per acre as a "high density" much less a "population concentration." Although she concurred that there are "population concentrations" in St. Petersburg centered in its urban core, she disagreed with Petitioner's expert that increased density on the Property created a "population concentration" near the CHHA or Bear Creek area. There was no competent evidence as to where any water line extensions would be located if the Property's Future Land Use Category were to change from RU and Industrial to RM. The City's interpretation of "population concentration" as used in CM 10.6 is reasonable, and therefore, the City's determination that the Ordinance is in compliance with CM 10.6 is fairly debatable. Consistency with LU 3.47 Comprehensive Plan Policy LU 3.4 states: The Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators. 7 "LU" refers to Future Land Use Element in the Comprehensive Plan. Petitioner focuses on compatible land use transition as only a function of density. PGSP argues a parcel categorized as RM (15 unity density) cannot abut an RU (7.5 unit density) categorized parcel because it violates Policy LU 3.4. Rather, it argues the RLM (10 unit density) category should have been used instead. It claims the City "leap-frogged" categories instead of using a "one step" up or down approach. PGSP's expert admits that a direct step down between plan categories is not explicitly required under the Comprehensive Plan language but argues other language related to "limited variation" required the single step. The plain language of Policy LU 3.4, however, simply requires an "orderly land use arrangement." It does not explicitly or implicitly state that the City must use a "step up" approach when determining the appropriate Future Land Use category. Furthermore, PGSP relied on its density calculation of 30 dwelling units per acre to argue that with the surrounding adjacent land density of 7.5 units per acre, there would be a 400% increase in planned residential density. As stated above, the maximum possible density under the Amendment is 21 dwelling units per acre. Moreover, the City points out that that the mobile home park to the south of the Property has an actual density of approximately 20 dwelling units per acre. Thus, the transition from 20 to 21 is an orderly land use arrangement as contemplated by Policy LU 3.4. The FLUM also does not reflect a perfect one up or down transition pattern throughout St. Petersburg. Rather, it shows areas categorized RM abutting areas categorized RU and RLM. In fact, there is an area designated RM which abuts RU parcels within 800 feet of the Property. The City presented adequate evidence establishing the change from Institutional to a residential category fits with surrounding residential use. Moreover, it established that natural and physical barriers on the Property, including creeks and right of ways, provide transition as contemplated by Policy LU 3.4. PGSP does not explain why these barriers are inadequate. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.4. Consistency with Objective Policy LU 3.6 Policy LU 3.6 states: Land use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated. PGSP argues the increase in density as a result of the change in categories from RU to RM is inconsistent with the "character" of the surrounding neighborhood, which is made up of single-family homes. Again, PGSP's argument relies heavily on the density calculation of 30 units per acre. As stated above, this density is only available with a change to the underlying zoning to NTM, which was not sought by the Church in its application. The maximum density applicable to the RM portions of the Property is 21 dwelling units per acre. As stated above, the City established there are other instances of RM abutting RU in the same neighborhood, approximately 800 feet from the Property. Ms. Abernathy testified that, based on the City's historic development pattern, RM is the appropriate transitional category next to RU on a major street (such as 64th Street South) under the Comprehensive Plan. Ms. Abernethy further testified that residential single-family use adjoining either residential multi-family or commercial uses in the City is a "very common development pattern." Therefore, the RM designation is not inconsistent with Policy LU 3.6. Moreover, the RM designation provides for a primary residential use, which the Institutional designation does not. Although PGSP focused solely on density as the grounds for evaluating the "established character of the neighborhood," the City established that several other considerations go into its analysis related to Policy LU 3.6. Beyond looking at existing and proposed densities of the Future Land Use categories, City staff considers the occurrences and relationships between the uses of the property (i.e., residential versus institutional; or residential versus residential) and the existence of similar patterns in the surrounding neighborhood. In this case, the surrounding areas included other areas designated RM and the mobile home park. Determination of the character of the neighborhood was also based on a study of the existing road network and the potential impacts on traffic due to the Amendment. The street classification of 64th Street South as a Future Major was a key consideration in determining whether the changes in the Property were consistent with the character of the surrounding area because that street is the Property's frontage and only access point. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.6. Data and Analysis PGSP also claims the City did not rely on relevant and appropriate data and analysis in adopting the Ordinance and Amendment. PGSP, however, did not conduct or provide the City with any studies.8 Daniel Porter, PGSP's expert in real estate, did not provide a comparative market analysis of the neighborhood or any other industry- recognized report. He proffered only opinion testimony based on email responses from four nearby residents, only one of which alluded to any issues with selling a home in the area. 8 PGSP retained Mr. Gauthier for this administrative proceeding; he did not testify or prepare a report to the Planning Commission or the City Council. Petitioner's members presented no opposing reports or studies beyond lay opinion testimony during the public hearing. Mr. Gauthier testified that in calculating his density and formulating his opinions, he used the City's map set and GIS data from the City's website.9 In contrast, the City relied on several data sources in reaching its conclusions regarding compliance in the Staff Report, in the presentations at the City Council meeting, and at the final hearing. These sources include the Comprehensive Plan and maps; LDRs; GIS aerials and maps; application materials; a narrative from the property owner; plat records; the Pinellas Countywide Plan Rules; and an outside Traffic Impact Statement by a traffic engineering firm, Kimley-Horn. In addition to the Kimley-Horn report, Tom Whalen, the City's transportation planning expert, performed an analysis related to 64th Street South, which was included in the Staff Report. He also testified at the final hearing regarding his sources for that data, including a City-conducted traffic count, use of the Florida Department of Transportation's level of service tables, and the Forward Pinellas Countywide Rules. At the final hearing, the City also presented demonstrative exhibits in the form of enlarged maps illustrating the surrounding neighborhood, the Property, and similar development patterns of RM and RU designations across the City. Regarding the density calculation, the City introduced and explained the reasons and sources supporting its maximum density figure of 21 dwelling units per acre. This included the Pinellas Countywide Plan Rules, the Comprehensive Plan, and LDRs.10 The City established the Ordinance and Amendment are based upon surveys, studies, and data regarding the character of the land. 9 "GIS" is Geographic Information Systems. 10 Moreover, Mr. Kilborn explained that exact density calculations would be finalized during the site plan review process, which involves further surveys and engineering measurements. Petitioner failed to prove beyond fair debate that the Ordinance was not supported by data and analysis, and/or that the City's response to that data and analysis was not appropriate. Ultimate Findings PGSP did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City has provided a preponderance of the evidence, which is both competent and substantial, which supports the findings in the Staff Report and the City Council's adoption of the Ordinance. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of St. Petersburg Comprehensive Plan Amendment, Ordinance 739-L, is "in compliance" as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Jacqueline Kovilaritch, Esquire City of St. Petersburg Florida One 4th Street North, 10th Floor St. Petersburg, Florida 33731-2842 Michael J. Dema, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Heather Judd, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: 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. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
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 Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2004.
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background 1. E. K. Edwards (Edwards) and Richard J. Clark (Clark), who are non-parties, own two tracts of land totaling 43.76 acres approximately four or five miles west-northwest of the City of Pensacola in unincorporated Escambia County. The larger tract (known as the Northern Parcel and owned by Edwards) consists of one parcel totaling 26.76 acres and is located at 2700 Blue Angel Parkway, also known as State Road 173. The second tract (known as the Southern Parcel and owned by Clark) consists of four contiguous parcels totaling around 17 acres and is located approximately 560 feet south of the Northern Parcel at the northeastern quadrant of the intersection of Blue Angel Parkway and Sorrento Road (intersection). The two tracts are separated by two large privately-owned lots that currently have residential uses. (However, the land use on one of those parcels, totaling almost 9 acres, was recently changed to a Commercial land use designation. See Finding of Fact 15, infra.) On July 10, 2002, a realtor (acting as agent on behalf of the two owners) filed an application with the County seeking to change the land use on the FLUM for both the Northern and Southern Parcels from LDR to Commercial. The LDR category allows residential densities ranging from one dwelling unit per five acres to 18 dwelling units per acre, as well as neighborhood commercial uses. The Commercial category would allow the owners to place a broad range of commercial uses on their property, such as shopping centers, professional offices, medical facilities, convenience retail, or other similar uses. On November 20, 2002, the County Planning Board (on which Petitioner was then a member) considered the application and voted unanimously to change the land use classification on the Southern Parcel to Commercial. It also voted to change the non-wetlands portion of the Northern Parcel to Commercial. However, the request to change the land use on the wetlands portion of the Northern Parcel was denied. This recommendation was forwarded to the Board of County Commissioners (Board), which modified the Planning Board's recommendation and approved the application as originally submitted. The amendment was then sent to the Department for an in compliance determination. On June 13, 2003, the Department issued its Objections, Recommendations, and Comments (ORC) Report. In the ORC, the Department expressed concerns that there were insufficient "adequate data and analyses to demonstrate the suitability of the [Northern Parcel] for the proposed Future Land Use designation" because of the presence of on-site wetlands. The ORC went on to say that the County had failed to demonstrate how the proposed amendment would be consistent with four other Plan provisions that prohibit the location of commercial and industrial land uses in certain types of wetlands. The ORC recommended that the County "provide a more detailed characterization of the site and the surrounding area relative to the natural resources [wetlands] on the amendment site and the general area." After the issuance of the ORC, Mr. Edwards retained an ecological consultant, Dr. Joe A. Edmisten, to address the Department's concerns. On July 16, 2003, Dr. Edmisten submitted a 14-page Report in which he essentially concluded that while there were wetlands on the site, there were no endangered, threatened, rare, or listed plant or animal species. That Report has been received in evidence as Petitioner's Exhibit 4. In light of this new information, the Planning Board again considered the matter on August 20, 2003, and by a four- to-one-vote recommended that the application, as originally filed, be approved. The matter was then forwarded to the Board. In response to an inquiry by a Board member at the Board's meeting on September 4, 2003, Dr. Edmisten stated that he found a "few pitcher plants in the wetlands [on Mr. Edwards' property]," including Sarracenia leucophylla, which is on the State (but not federal) Endangered Plant List. See Fla. Admin. Code R. 5B-40.0055(1)(a)334. Even though this information had not been disclosed in the Report, by a three- to-two vote, the Board adopted Ordinance No. 2003-45, which approved the change to the FLUM for both the Northern and Southern Parcels. On October 24, 2003, the Department issued its Notice of Intent to Find the Escambia County Comprehensive Plan Amendment in Compliance. On November 17, 2003, Petitioner, who resides, owns property, and operates a business within the County, and submitted written or oral comments, objections, or recommendations to the County before the amendment was adopted, filed his Petition alleging that the plan amendment was not in compliance. Petitioner is an affected person within the meaning of the law and has standing to file his Petition. In the parties' Pre-Hearing Stipulation, Petitioner contends that there is inadequate data and analyses relative to the natural environment (wetlands), traffic concurrency, and urban sprawl to support the amendment. As further clarified by Petitioner, he does not challenge the change in the FLUM for the Southern Parcel, but only contests that portion of the amendment which changes the land use on the Northern Parcel, on which wetlands are sited. In view of this, only the Northern Parcel will be considered in this Recommended Order. The Property The Northern Parcel fronts on the eastern side of Blue Angel Parkway approximately 1,400 feet north of the intersection. In broader geographic terms, the property is in western Escambia County and appears to be several miles west- northwest of the Pensacola Naval Air Station (which lies west- southwest of the City of Pensacola) and several miles south of U.S. Highway 98, which runs east-west through the southern part of the County. Blue Angel Parkway is a minor arterial roadway (at least where it runs in front of the Northern Parcel) and begins at the Pensacola Naval Air Station (to the south) and runs north to at least U.S. Highway 98. From the Naval Air Station to the intersection, Blue Angel Parkway appears to have four lanes, and from that point continuing past the Northern Parcel to U.S. Highway 98, it narrows to two undivided lanes. At the present time, an old borrow pit sits on the eastern side of the land, for which the property was given a special exception by the County's Zoning Board of Adjustments in March 1995. Also, there are at least three other ponds (or old borrow pits) formerly used by the owner for catfish farming; two large, unused metal buildings (apparently hangars) moved from the Naval Air Station to the property as military surplus; and numerous stored empty tanks in the southeastern corner of the property. The remainder of the property is vacant. When Dr. Edmisten's Report was submitted in July 2003, all of the ponds were filled with water due to recent heavy rains. Because of existing development at all corners of the intersection except the southwest corner, the intersection has been designated by the County as a commercial node, and the County considers the node to extend from the intersection northward along the eastern side of Blue Angel Parkway to the Northern Parcel. (However, on the western side of the road, the County has determined that the node terminates at the end of a parcel on which a Wal-Mart Super Center sits, and that further commercial development beyond that point would be inappropriate.) This determination is consistent with the Commercial land use classification found on the western portion of the Northern Parcel. See Finding of Fact 13, infra. The property presently carries a split future land use: an approximate 150-foot deep sliver of land which fronts on Blue Angel Parkway is classified as Commercial, while the remainder of the parcel is LDR. This dichotomy in land uses stems from a decision by the County in 1993 (when the Plan was adopted) to designate a narrow commercial strip on both sides of Blue Angel Parkway from just south of the intersection to Dog Track Road, which lies north of the Northern Parcel. The property also carries an Industrial zoning classification (presumably related to the mining activities), even though the land use on most of the parcel is residential. By his application, Edwards is seeking to "unify" the back or eastern portion of his property, which is now LDR, with the western portion fronting on Blue Angel Parkway, which is classified as Commercial. To the east of the Northern Parcel is Coral Creek, a fairly large residential subdivision platted in the 1990s. Some of the single-family lots in that subdivision back up to the eastern boundary of the property. The property to the north is vacant, is populated with some pitcher plants, and is classified as residential. Across the street and to the southwest is a new Wal-Mart Super Center which opened in the last year or so at the northwestern quadrant of the intersection. (The northern boundary of the Wal-Mart Super Center parcel is directly across the street from the southern boundary of the Northern Parcel.) The property directly across the street and extending to the north is vacant and classified as Residential. That parcel also contains pitcher plants and is informally designated as "pitcher plant prairie." The property which separates the Northern and Southern Parcels is classified as Residential, except for 8.98 acres which were recently changed from LDR to Commercial through a small-scale development amendment approved by the Department. See Gregory L. Strand v. Escambia County, DOAH Case No. 03-2980GM (DOAH Recommended Order Dec. 23, 2003; DCA Final Order Jan. 28, 2004). The Final Order in that case, however, has been appealed by Petitioner. While the precise amount of wetlands on the site is unknown, the record does indicate that wetlands exist on "approximately" one-half of the Northern Parcel, or around thirteen or so acres, leaving a like amount of uplands. (Therefore, even if the property is reclassified, the amount of development on the property will be restricted in some measure through the application of the County's Wetlands Ordinance found in the Land Development Code.) A small area of wetlands exists on the western side of the property near Blue Angel Parkway while a larger wetland system lies on the eastern side of the property and acts as a buffer with the Coral Creek subdivision. The wetlands are under the permitting jurisdiction of the United States Corps of Engineers, the Department of Environmental Protection, and the County. Petitioner's Objections Petitioner contends that the amendment is not in compliance because there is inadequate data and analyses relative to conservation (wetlands), traffic, and urban sprawl to support the change in the land use.2 These issues will be addressed separately below. Wetlands As to this objection, Petitioner's principal concern is that if the land use change is approved, there will be much more intense development on the property which will result in a loss of wetlands, even with mitigation. Citing Policy 11.A.2.6.d of the Coastal Management Element of the Plan, he contends that there is insufficient data and analyses to support the plan amendment's distribution of land uses in such a way as to minimize the effect and impact on wetlands. The cited policy contains provisions which govern the development of lands within wetland areas, including one provision which states that "commercial and industrial land uses will not be located in wetlands that have a high degree of hydrological or biological significance, including the following types of wetlands: . . . Wetlands that have a high degree of biodiversity or habitat value, based on maps prepared by the Florida Fish and Wildlife Commission or Florida National Areas Inventory, unless a site survey demonstrates that there are no listed plant or animal species on the site." In Case No. 03-2980GM, supra, which involved a change in the FLUM on a parcel of property which separates the Northern and Southern Parcels, Petitioner contended, among other things, that the terms of Policy 11.A.2.6.d should apply whenever the FLUM is being amended, and that because there were wetlands on the parcel, along with two types of endangered plants, the policy prohibited a change from a residential to a commercial land use. In rejecting that contention, however, the Department approved and adopted language by the Administrative Law Judge which concluded, for several reasons, that "the County intended Policy 11.A.2.6.a through e to apply to decisions of the County regarding development applications and not to changes in future land use designations or categories in a FLUM." (Recommended Order, page 19). Therefore, the policy applies to development applications, and not to FLUM amendments, and does not have to be considered at this juncture. (That policy, and the County's Wetlands Ordinance, will obviously come into play at the time a site plan is filed and the owner seeks to develop the property.) As such, there is no need for data and analyses at this time to demonstrate that the policy has been satisfied. As noted above, after the Department issued its ORC, Mr. Edwards engaged the services of Dr. Edmisten, who performed a study and prepared a Report that evaluated the wetlands on the Northern Parcel. That Report constitutes much of the data and analyses which support the amendment. Despite the presence of one endangered plant species, the Report indicates that the wetlands do not have a high degree of hydrological or biological significance; that the change in the FLUM is consistent with all relevant policies in the Plan, including those cited in the ORC; that a mitigation plan will be offered prior to any development; and that all wetlands issues will be addressed during the development stage. The Report also indicates that among other things, Dr. Edmisten utilized the National Wetlands Inventory Map in reaching his conclusions. The Department reviewed the document and found that it constituted the best available data and analyses, that the data were analyzed in a professional manner, and that the County reacted to the data in an appropriate manner when it adopted the amendment. This is especially true since the County has provisions in its Plan for wetlands avoidance and fully considers these issues through the site-review process. Given these considerations, it is at least fairly debatable that there exist adequate data and analyses regarding wetlands to support the change in the land use on the property. Traffic Petitioner also contends that there is a lack of adequate data and analyses to demonstrate that the proposed change in land use will not adversely impact traffic in the area. More specifically, he contends that the County failed to perform an analysis of infrastructure capacity, and that it also failed to include information that Blue Angel Parkway is not in its five-year plan for improvements. Data and analyses were provided in the form of a spreadsheet dated November 6, 2002, and entitled Traffic Volume and Level of Service Report (Traffic Report). The Traffic Report contained several categories of information regarding traffic volume, Level of Service (LOS), and other transportation information. (See Petitioner's Exhibit 1) The data were far more detailed than data previously used by the County on other amendments of this size and character, and they were based on Florida Department of Transportation (DOT) accepted standards of traffic calculations. The data and analyses were the best available at the time the plan amendment was adopted. The data shows that the section of Blue Angel Parkway on which the Northern Parcel fronts has an adopted LOS of "D." At the time the amendment was adopted, the service volume on that portion of the road was 74 percent, which means that the roadway was operating at 74 percent of its capacity. Therefore, when the amendment was adopted, the roadway was not failing, and it could handle additional traffic, including any that might be associated with the future development of the land. Petitioner also contends that the County's study was flawed because the County used so-called "Art Tab" software, which became outdated after September 1, 2002. (Art-Tab software has now been updated and is called Free Plan software.) He further suggests that the County should have performed a new study using updated software. Under DOT requirements set forth in its Quality/Level of Service Handbook, however, the County was not required to redo its analysis; rather, it was required to use the new software only in the event further studies were required. Because Blue Angel Parkway was not failing at the time the study was performed, it was not necessary for the County to undertake a new study. During the interagency review process, the DOT did not issue any objections, recommendations, or comments to the Department concerning the amendment. Finally, Petitioner contends that because the County did not have Blue Angel Parkway on any road improvement list at the time the amendment was adopted, its analysis of infrastructure capacity was flawed. See Section 163.3177(3)(a), Florida Statutes, which requires that each local government's comprehensive plan contain a capital improvements element with a component which outlines the principles for correcting public facility deficiencies covering at least a five-year period. Whether the County's Plan contains such a component is not of record. In any event, even if the County failed to consider the fact that Blue Angel Parkway was not scheduled for upgrading when the amendment was adopted, given the other data and analyses available at that time (the traffic spreadsheet), which reflected that the roadway was operating below capacity, the County had sufficient information regarding infrastructure capacity to support the amendment. Based on the foregoing, it is at least fairly debatable that the amendment has adequate data and analyses relative to traffic impacts to support the land use change. Urban sprawl Finally, Petitioner asserts that no data were gathered and no analyses were performed to demonstrate that the change in land use will discourage urban sprawl. In this case, the Department did not require that the County perform an urban sprawl analysis, given the type of surrounding land uses; the relative small size of the Northern Parcel; the absence of any land use allocation problems; the ability of the owner to now place up to 18 units per acre and/or neighborhood commercial development on the property under the current LDR classification; and the fact that the Northern Parcel is located on the edge of a rapidly urbanizing area of the County. At the same time, Petitioner presented no evidence which supported the need for such a study. The Northern (and Southern) Parcel is located in a rapidly urbanizing area of the County and is close to several other urban uses. Indeed, as noted earlier, there is a Wal- Mart Super Center across the street at the northwestern quadrant of the intersection, and a mix of commercial and residential uses abut the intersection to the southeast. All four corners of the intersection have been designated as a commercial node in the County's draft Southwest Sector Plan, and the County has determined that the node continues northward on the eastern side of the road to and including the Northern Parcel. As a general rule, the Department considers the size and shape of nodes to be a local government decision, and it found no reason here to question that determination. The Plan encourages commercial development at intersectional nodes. Under Florida Administrative Code Rule 9J- 5.003(134), urban sprawl is defined in part as "urban development or uses which are located in predominately rural areas." Indicators of urban sprawl include "[t]he premature or poorly planned conversion of rural land to other uses," and the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area." The evidence does not support a finding that the amendment will result in the poorly planned conversion of rural lands, or the creation of a land use that is not functionally related to land uses that predominate the adjacent area. Given these considerations, Petitioner has not proven beyond fair debate that the plan amendment will result in urban sprawl, or that the County lacked adequate data and analyses related to urban sprawl to support the change in the land use.
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. 2003-45 on September 4, 2003, is in compliance. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004.
Findings Of Fact Based upon all of the pleadings and evidence, including the stipulation by counsel, the following findings of fact are determined: Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan, which is the subject of the dispute. Petitioners, Henry and Betty Prominski, are residents of Marion County and own a 16.5 acre tract of land on the southeast bank of Lake Weir in the southeastern portion of the County. The property is more commonly known as Orangewood Shores Subdivision. Until April 1994, the land was classified in the urban expansion category, which allows up to four residential units per acre. The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County eventually adopted certain remedial amendments on April 7, 1994, one of which changed the land use designation on petitioners' property from urban expansion to urban reserve. Under the new classification, only one residential unit per ten acres is allowed. A cumulative notice of intent to find the plan and remedial amendments in compliance was issued by the DCA on May 30, 1994. During the foregoing process, petitioners timely submitted oral or written objections to the County concerning the plan amendment, and thus they are affected persons within the meaning of the law. On September 14, 1994, the County, through its Staff Vesting Committee, issued Vesting Order No. 94-14, which granted petitioners' application for vesting determination on Orangewood Shores Subdivision. Among other things, the order determined that "the applicant has vested rights to complete the development (known as Orangewood Shores Subdivision) without aggregation of lots providing the applicant continues development activity in good faith." In this regard, petitioners have represented that they intend to "continue development activity in good faith," and they do not intend to vacate their plat. They also recognize that their land is vested from the plan amendment. Despite the lack of any viable issues regarding the development of their property, for the sake of "principle" only, they still wish to contest the de facto reclassification of their property. The foregoing language in the Vesting Order means that petitioners have vested rights to complete the development of their land notwithstanding the change of land use designation from urban expansion to urban reserve. The parties also agree that the effect of the Vesting Order is to vest the property from the comprehensive plan and the restrictions of the urban reserve area. Therefore, within the narrow context of the petition, the thrust of which is that the plan amendment prevents the subdivision's development, the issues raised therein are no longer viable, and petitioners do not have a cognizable interest in the outcome of this proceeding. The controversy is accordingly deemed to be moot.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the petition in this case on the ground the issues raised therein are moot. DONE AND ENTERED this 21st day of June, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1996. COPIES FURNISHED: Henry J. Prominski, Esquire Post Office Box 540 Weirsdale, Florida 32195-0540 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
The Issue The issue is whether the Evaluation and Appraisal Report (EAR) amendments for the Bay County (County) Comprehensive Plan (Plan) are in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. The County is a local government that administers its Plan and adopted the Ordinance which approved the changes being contested here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The EAR Process The County's first Plan was adopted in 1990 and then amended through the EAR process in 1999. As required by law, on September 5, 2006, the County adopted another EAR and in 2007 a Supplement to the EAR. See County Ex. 1C and 1D. The EAR and Supplement were found to be sufficient by the Department on December 21, 2007. See County Ex. 1E. After the EAR-based amendments were adopted by the County and transmitted to the Department for its review, the Department issued its Objections, Recommendations and Comments (ORC) report. After making revisions to the amendments in response to the ORC, on October 20, 2009, the County enacted Ordinance No. 09-36, which adopted the final version of the EAR-based amendments known as "Charting Our Course to 2020." See County Ex. 1B. On December 15, 2009, the Department issued its notice of intent determining that the EAR-based amendments were in compliance. See County Ex. 1F. Notice of this determination was published in the Panama City News Herald the following day. See County Ex. 1G. The EAR is a large document comprised of five sections: Overview Special Topics; Issues; Element Reviews; Recommended Changes; and a series of Maps. Section 163.3191(10), Florida Statutes, requires that the County amend its comprehensive plan "based" on the recommendations in the report; subsection (2) also requires that the County update the comprehensive plan based on the components of that subsection. The EAR-based amendments are extensive in nature, and include amendments to all 13 chapters in the Plan. However, many provisions in the 1999 version of the Plan were left unchanged, while many revisions were simply a renumbering of a provision, a transfer of a provision to another element, a change in the format, or an otherwise minor and non-substantive change. Although the EAR discusses a number of issues and concerns in the first three sections of the report, the EAR- based amendments must only be based on the recommended changes. See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary for the County to react through the amendment process to the discussions in the Issues and Element Reviews portions of the EAR. For example, the EAR discusses air quality and mercury but made no specific recommendations to amend the Plan to address either subject. Also, nothing in chapter 163 or Department rules requires that the County implement changes to the Plan that parrot each specific recommendation to the letter. So long as the revisions are "based" on an area of concern in the recommendations, the statutory requirement has been satisfied. Section Four of the EAR contains the "Recommended EAR- Based Actions and Corrective Measures Section 163.3191(2)(i)." See County Ex. 1C, § 4, pp. 1-9. Paragraph (2)(i) of the statute requires that the EAR include "[t]he identification of any actions or corrective measures, including whether plan amendments are anticipated to address the major issues identified and analyzed in the report." Section Four indicates that it was intended to respond to the requirements of this paragraph. Id. at p. 1. Finally, the only issue in this proceeding is whether the EAR-based amendments are in compliance. Therefore, criticisms regarding the level of detail in the EAR and Supplement, and whether the County adequately addressed a particular issue in those documents, are not relevant. A determination that the EAR was sufficient in all respects was made by the Department on December 21, 2007. In her Amended Petition, Petitioner raises numerous allegations regarding the EAR-based amendments. They can be generally summarized as allegations that various text amendments, including entire elements or sub-elements, are inconsistent with statutory and rule provisions or are internally inconsistent with other Plan provisions, and that the County failed to properly react to changes recommended in the EAR. Because this is a challenge to an in-compliance determination by the Department, Petitioner must show that even though there is evidence to support the propriety of these amendments, no reasonable person would agree that the amendments are in compliance. See Conclusion of Law 90, infra. Objections Administrative Procedures - Chapter 1 Petitioner contends that new policy 1.4.1(4) is inconsistent with sections 163.3181 and 187.201(25)(a) and (b)6., which generally require or encourage effective citizen participation, and rule 9J-5.004, which requires a local government to adopt procedures for public participation. She also contends the County should not have deleted policy 1.4.2, which required the County to provide notices (by mail and sign postings) beyond those required by chapter 163. The new policy simply provides that notice of public hearings be provided for in accordance with chapter 163. There is no statutory or rule requirement that more stringent notice requirements be incorporated into a plan. The new notice requirements are consistent with the above statutes and rule. It is fairly debatable that the changes to the Administrative Procedures part of the Plan are in compliance. Future Land Use Element (FLUE) - Chapter 3 Petitioner has challenged (a) one policy that creates a new planning area; (b) the County's failure to adopt new energy standards in the FLUE; and (c) the adoption of new development standards for two land use categories in Table 3A of the FLUE. Table 3A describes each land use category in the Plan, including its purpose, service area, designation criteria, allowable uses, density, intensity, and development restrictions. See County Ex. 1A, Ch. 3, pp. 3-5 through 3-17. These contentions are discussed separately below. Southport Neighborhood Planning Area New FLUE policy 3.4.8 creates the Southport Neighborhood Planning Area (Southport), a self-sustaining community with a functional mix of uses. See County Ex. 1A, Ch. 3, pp. 3-20 and 21. The effect of the amendment is simply to identify Southport as a potential planning area that includes a mixture of uses. This follows the EAR recommendations to create "new areas where residents are allowed to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the area[,]" and to create "higher density rural development." County Ex. 1C, § 4, p. 2. Southport is located north of the greater Panama City area in an unincorporated part of the County near or adjacent to the proposed new intersection of County Road 388 and State Road 77. Southport is also identified in new policy 3.2.5(8) as a Special Treatment Zone (STZ) that is designated as an overlay on the Future Land Use Map Series. Id. at p. 3-5. (There are seven STZs in the Plan that act as overlay districts on the FLUM. Overlays do not convey development rights.) Petitioner contends that policy 3.4.8 is inconsistent with sections 163.3177(6)(a) and (d), (8), and (9)(b) and (e), and rules 9J-5.005(2), (5), and (7), 9J-5.006(5), and 9J-5.013. More precisely, Petitioner generally contends that the amendment will encourage urban sprawl; that there is no need for the additional development; that there are no central water and wastewater facilities available to serve that area; that there is no mechanism for monitoring, evaluating, and appraising implementation of the policy; that it will impact nearby natural resources; that it allows increased density standards in the area; and that it is not supported by adequate data and analysis. Most of the data and analysis that support the establishment of the new planning area are in the EAR. They are found in the Introduction and Overview portion of Section One and the FLUE portion of Section 3 of the Element Reviews. The County Director of Planning also indicated that the County relied upon other data as well. Although the new policy allows an increase in maximum residential density from five to 15 dwelling units per acre, paragraph (b) of the policy specifically requires that "all new development [be] served by central water and sewer." Petitioner's expert opined that the new community will create urban sprawl. However, Southport is located within the suburban service area of the County, which already allows densities of up to five dwelling units per acre; it is currently developed with low-density residential uses; and it is becoming more urban in nature. Given these considerations, it is fairly debatable that Southport will not encourage urban sprawl. The new STZ specifically excludes the Deer Point Reservoir Protection Zone. Therefore, concerns that the new policy will potentially threaten the water quantity and quality in that reservoir are not credited. In addition, there are other provisions within the Plan that are designed to protect the reservoir. Petitioner criticized the County's failure to perform a suitability analysis before adopting the amendment. However, a suitability study is performed when a land use change is proposed. Policy 3.4.8 is not an amendment to the FLUM. In fact, the Plan notes that "[n]othing in this policy shall be interpreted as changing the land use category of any parcel of the [FLUM]." County Ex. 1A, Ch. 3, p. 3-21. In determining the need for this amendment, the County took into consideration the fact that except for the Beaches STZ, the EAR-based amendments delete residential uses as an allowed use in commercially-designated lands. The number of potential residential units removed from the commercial land use category far exceeds the potential number of residential units that could be developed at Southport. Thus, the new amendment will not result in an increase in residential units. Petitioner also contends that the County should have based its needs analysis using Bureau of Economic and Business Research (BEBR) estimates. The County's population projections are found in the Introduction portion of the EAR and while they make reference to BEBR estimates, they are not based exclusively on those data. See County Ex. 1C, § 1, pp. 2 and 3. However, there was no evidence that the estimates used by the County are not professionally acceptable. Where there are two acceptable methodologies used by the parties, the Department is not required to evaluate whether one is better than the other. See § 163.3177(10)(e), Fla. Stat. ("the Department shall not evaluate whether one accepted methodology is better than another"). The County's estimates are professionally acceptable for determining need. The other objections to the amendment have been considered and found to be without merit. Therefore, it is at least fairly debatable that the amendment is in compliance. Neighborhood Commercial - Table 3A The purpose of this commercial category is to "provide areas for the convenience of residential neighborhoods so as to generate a functional mix of land uses and reduce traffic congestion." County Ex. 1A, Ch. 3, p. 3-15. Allowable uses include, among others, supermarket centers, restaurants, public facilities, and other similar uses. The County amended the intensity standard for this category by allowing development that is "[n]o more than 50-feet in height." Id. Petitioner asserts that the new 50-foot height limitation for commercial buildings results in the amendment being inconsistent with rule 9J-5.006 because it is not based on adequate data and analysis. Petitioner further argues that the standard is internally inconsistent with FLUE objective 3.9 and policy 3.9.1 and Housing Element objective 8.5, which relate to compatibility. Finally, Petitioner alleges that it will cause unsustainable density in the category and create new demands for public services. The EAR contains a section that analyzes data regarding residential development in commercial land use categories. See County Ex. 1C, § 2. There is, then, data and analysis that support the amendment. The 50-foot height limitation actually limits the intensity that would normally be allowed under current Land Development Regulations (LDRs) if this limitation were not in the Plan. Therefore, it will not increase the intensity of development within this district. Because the Plan specifically provides that the category is for "areas [with] low-intensity commercial uses that will be compatible with adjacent or surrounding residential uses," and such uses must be located "outside subdivisions . . . unless intended to be included in the subdivisions," compatibility issues with adjacent residential areas should not arise. Petitioner failed to establish beyond fair debate that the amendment is not in compliance. Seasonal/Resort - Table 3A This land use category is designed for transient occupancy (temporary seasonal visitors and tourists) under chapter 509, rather than permanent residents. It is limited to areas with concentrations of accommodations and businesses that are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3- The category includes a new intensity standard for buildings of "[n]o more than 230-feet in height." Id. Petitioner contends that this intensity standard is inconsistent with section 163.3177(6)(d), (8), and (9) and rules 9J-5.005(2) and (5), 9J-5.006, and 9J-5.013. These provisions require that an amendment protect natural resources, that it be based on the best available data and analysis, and that it be internally consistent with other Plan provisions. Petitioner also points out that the land use category is located in or adjacent to the Coastal High Hazard Area, that the amendment allows an increase in density, and this results in an inconsistency with statutes and rules pertaining to hurricane evacuation zones. Prior to the adoption of the EAR-based amendments, there was no intensity standard in the Plan for this land use category and all development was governed by LDRs. Pursuant to a recommendation by the Department in its ORC, the new standard was incorporated into the Plan. Before making a decision on the specific height limitation, the County considered existing condominium construction on the beach, current LDR standards for the district, and whether the new standard would create an internal inconsistency with other Plan provisions. Therefore, it is fair to find that adequate data were considered and analyzed. The new height limitation is the same as the maximum height restriction found in the Seasonal Resort zoning district, which now applies to new construction in the district. Because condominiums and hotels that do not exceed 230 feet in height are now allowed within the district, and may actually exceed that height if approved by the County, the amendment is not expected to increase density or otherwise affect hurricane evacuation planning. Historically, transient visitors/tourists are the first to leave the area if a hurricane threatens the coast. Petitioner also contends that the amendment will create compatibility problems between existing one- or two-story residential dwellings in the district and high-rise condominiums, and that the County failed to adequately consider that issue. However, before a condominium or other similar structure may be built, the County requires that the developer provide a statement of compatibility. It is fairly debatable that the new intensity standard is in compliance. Energy Issues Petitioner alleges that the new amendments do not adequately address energy issues, as required by section 163.3177(6)(a). That statute requires, among many other things, that the FLUE be based upon "energy-efficient land use patterns accounting for existing and future electric power generation and transmission systems; [and] greenhouse gas reduction strategies." However, amendments to objective 3.11 and policy 3.11.5, which relate to energy-efficient land use patterns, adequately respond to these concerns. See County Ex. 1A, Ch. 3, pp. 3-27 and 3-28. In addition, new Transportation Element policy 4.10.3 will result in energy savings and reduce greenhouse gases by reducing idle times of vehicular traffic. See County Ex. 1A, Ch. 4, p. 4-12. It is fairly debatable that the energy portions of the Plan are in compliance, and they promote energy efficient land use patterns and reduce greenhouse gas emissions, as required by the statute. Transportation Element - Chapter 4 The EAR contains 14 recommended changes for this element. See County Ex. 1C, § 4, pp. 2-4. Item 2 recommends generally that bike paths be installed in or next to certain areas and roadways. Id. at p. 2. Petitioner contends that this recommendation was not implemented because it is not included in the Recreation and Open Space Element. However, one section of the Transportation Element is devoted to Bicycle and Pedestrian Ways and includes objectives 4.14 and 4.15 and policies 4.14.1 and 4.15.1, which respond to the recommendation. See County Ex. 1A, Ch. 4, pp. 4-14 and 4-15. In addition, the General Strategy portion of the element requires the County to install alternative transportation systems where a demonstrated need exists. Id. at p. 4-1. Petitioner contends that by limiting bike paths only to where there is a demonstrated need, the County has not fully responded to the recommendation. This argument is illogical and has been rejected. It is fairly debatable that the above amendments are in compliance. Groundwater Aquifer Recharge - Chapter 5F As required by section 163.3177(6)(c), the County has adopted a natural groundwater aquifer recharge element. See County Ex. 1A, Ch. 5F. The goal of this sub-element, as amended, is to "[s]afeguard the functions of the natural groundwater recharge areas within the County to protect the water quality and quantity in the Floridan Aquifer." County Ex. 1A, Ch. 5, p. 5F-1. The EAR contains three recommended changes for this part of the Plan: that the County update its data and analysis to identify areas of high and/or critical recharge for the Floridan aquifer; that it include in the data and analysis an examination of existing LDRs which affect land uses and development activities in high recharge areas and note any gaps that could be filled through the LDRs; and that it include within the data and analysis a study of potential impacts of increased development in high recharge areas, including reasonable development standards for those areas. See County Ex. 1C, §4, pp. 4-5. Petitioner contends that "the objectives and policies pertaining to protecting water recharge areas" are inconsistent with sections 163.3177(6)(d) and 187.201(7) and rules 9J-5.5.011 and 9J-5.013, which require that the Plan protect groundwater; that they violate section 163.3177(8) and rule 9J-5.005(7), which require measurable objectives for monitoring, evaluating, and appraising implementation; and that the County violated section 163.3191(10) by failing to respond to the recommended changes in the EAR. In response to the EAR, in July 2009, the County prepared a watershed report entitled "Deer Point Lake Hydrologic Analysis - Deer Point Lake Watershed," which was based on a watershed management model used by County expert witness Peene. See County Ex. 4. The model used for that report is the same model used by the Department of Environmental Protection (DEP) and the United States Army Corps of Engineers. The study was also based on data and analysis prepared by the Northwest Florida Water Management District. The purpose of the analysis was to look at potential future land use changes in the Deer Point watershed and assess their ultimate impact upon the Deer Point Reservoir, which is the primary public water supply for the County. The model examined the entire Deer Point watershed, which is a much larger area than the Deer Point Lake Protection Zone, and it assumed various flows from rain, springs, and other sources coming into the Deer Point Reservoir. The study was in direct response to a recommendation in the EAR that the County undertake a study to determine if additional standards were needed to better protect the County's drinking water supply and the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another recommendation was that the study be incorporated by reference into the data and analysis of the Plan and be used as a basis for any amendments to the Plan that might be necessary. Id. at p. 6. Pursuant to that recommendation, the report was incorporated by reference into Objective 5F.1. See County Ex. 1A, Ch. 5, p. 5F-1. The evidence supports a finding that the report is based on a professionally accepted methodology and is responsive to the EAR. The model evaluated certain future land use scenarios and predicted the level of pollutants that would run off of different land uses into the Deer Point Reservoir. Based on this analysis, Dr. Peene recommended that the County adopt certain measures to protect the groundwater in the basin from fertilizers, stormwater, and pesticides. He also recommended that best management practices be used, that septic tanks be replaced, and that any new growth be on a centralized wastewater treatment plant. Petitioner's expert criticized the report as not sufficiently delineating the karst features or the karst plain within the basin. However, the report addresses that issue. See County Ex. 4, p. 2-36. Also, Map 13 in the EAR identifies the Karst Regions in the County. See County Ex. 1C, § 5, Map 13. One of the recommendations in the EAR was to amend all goals, policies, and objectives in the Plan "to better protect the Deer Point watershed in areas not included within the Deer Point Reservoir Special Treatment Zone, and [to] consider expanding the zone to include additional areas important to preserving the quantity and quality of water entering the reservoir." County Ex. 1C, § 4, p. 6. Besides amending the sub-element's goal, see Finding of Fact 31, supra, the County amended objective 5F.1 to read as follows: By 2010 protect groundwater resources by identifying and mapping all Areas of High Aquifer Recharge Potential to the Floridan Aquifer in Bay County by using the data and analysis contained in the Deer Point Lake Hydrologic Analysis - Deer Point Watershed, prepared by Applied Technology and Management, Inc., dated July 2009. In addition, policy 5F-1.1 requires that the County use "the map of High Aquifer Recharge Areas to establish an Ecosystem Management overlay in the Conservation Element where specific land use regulations pertaining to aquifer water quality and quantity shall apply." Also, policy 5F-1.2 requires the identification of the Dougherty Karst Region. Finally, the EAR and Map 13A were incorporated by reference into the Plan by policy 1.1.4.4. These amendments sufficiently respond to the recommendations in the EAR. While Petitioner's expert criticized the sufficiency of the EAR, and he did not believe the report adequately addressed the issue of karsts, the expert did not establish that the study was professionally unacceptable or otherwise flawed. His criticism of the County's deletion of language in the vision statement of the sub-element that would restrict development density and intensity in areas known to have high groundwater aquifer potential is misplaced. An amendment to a vision statement is not a compliance issue, and nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to limit "density and intensity" in high aquifer recharge areas. On this issue, the EAR recommended that the County's drinking water supply be protected by using "scientifically defensible development standards." County Ex. 1C, § 4, p. 5. The amendments accomplish this result. Petitioner also contends that while new policy 5F.3 and related policies are "good," the County should have collected additional data and analysis on the existence of swallets, which are places where streams flow underground. Again, nothing in chapter 163 or chapter 9J-5 requires the County to consider swallets. Also, a contention that policy 5F3.2 allows solid waste disposal facilities in high recharge areas is without merit. The policy requires that the County continue to follow chapter 62-7 regulations (implemented by DEP) to protect water quality of the aquifers. In addition, a moratorium on construction and demolition landfills has been adopted, and current LDRs prohibit landfills within the Deer Point Reservoir Protection Zone. Petitioner also criticized the sufficiency of policy 5F.4, which requires the implementation of LDRs that limit land uses around high aquifer recharge areas. The evidence establishes that the new policy is sufficient to achieve this purpose. It is at least fairly debatable that the new amendments protect the natural resources, are based on the best available data and analysis, include measurable objectives for overseeing the amendments, and respond to the recommended changes in the EAR. Conservation Element - Chapter 6 The purpose of this element is to conserve the natural resources of the County. Petitioner contends that "many of the amendments [to this chapter] are not consistent with applicable rules and statutes, and that a number of recommendations in the EAR pertaining to the Conservation Element were not implemented as required by Section 163.3191(10)." These contentions are discussed below. Air pollution While the EAR discusses air pollution, there were no specific recommendations to amend the plan to address air quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and Petitioner contends, however, that current Plan objective 6.3, which was not amended, is not protecting air quality and should have been revised to correct major air quality problems in the County, including "the deposition of atmospheric mercury caused by fossil fuel burning power plants and incinerators." Objective 6.3 requires the County to maintain or improve air quality levels, while related policies 6.3.1 and 6.3.2 require that the County's facilities will be constructed and operated in accordance with state and federal standards. The policies also require that the County work through state and federal agencies to eliminate unlawful sources of air pollution. Notably, the County does not regulate emissions or air pollution, as that responsibility lies within the jurisdiction of other state and federal agencies. It is fairly debatable that the County reacted to the EAR in an appropriate manner. Policies and Objectives in Chapter 6 Petitioner contends that policy 6.1.1 is inconsistent with section 163.3177(8) and rule 9J-5.005(2) because: it is not supported by adequate data and analysis; it does not implement the EAR recommendations, as required by section 163.3191(10); it is inconsistent with section 163.3177(9)(b) and (f) because it results in "inconsistent application of policies intended to guide local land use decision[s]"; it is inconsistent with sections 163.3177(6)(d) and 187.201(9) and (10) and rule 9J- 5.013 because it fails to adequately protect natural resources, including isolated wetlands; and it is internally inconsistent with other Plan provisions. Policy 6.1.1 provides that as a subdivision of the State, the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Item 9 in the recommended changes recommends that the County should resolve the ambiguities and inconsistencies between various policies and objectives which rely on the jurisdiction of state laws and regulation on the one hand, and objective 6.11 and implementing policies, which appear to extend wetland jurisdiction to all wetlands, including isolated wetlands not regulated by the Northwest Florida Water Management District. See County Ex. 1C, § 4, p. 6. The real issue involves isolated wetlands, which at the time of the EAR were not regulated by the Northwest Florida Water Management District. The EAR did not recommend a specific solution, but only to resolve any apparent "ambiguity." Through amendments to policy 6.11.3, which implements objective 6.11, the County reacted to the recommendation. These amendments clarify the Plan and provide that wetlands in the County will be subject to the Plan if they are also regulated by state and federal agencies. Any ambiguity as to the Plan's application to isolated wetlands was resolved by the adoption of new rules by the Northwest Florida Water Management District, which extend that entity's jurisdiction to isolated wetlands. See Fla. Admin. Code Ch. 62-346. This was confirmed by County witness Garlick, who explained that the Plan now defers to the wetland regulations of state and federal agencies. Therefore, any inconsistencies or ambiguities have been resolved. Petitioner contends that objective 6.2 and implementing policy 6.2.1 are inconsistent with statutes and a rule which require protection of natural resources because they focus on "significant" natural resources, and not all natural resources. With the exception of one minor change to the policy, the objective and policy were not amended, and the EAR did not recommend that either be revised. Also, testimony established that existing regulations are applied uniformly throughout the County, and not to selected habitat. Finally, the existing objective and related policies already protect rare and endangered species in the County. Objective 6.3 requires that the County "maintain or improve air quality levels." For the reasons cited in Finding of Fact 45, the objective is in compliance. Objective 6.5 requires the County to maintain or improve estuarine water quality consistent with state water quality standards, while policy 6.5.1 delineates the measures that the County will take to achieve that objective. See County Ex. 1A, Ch. 6, pp. 6-4 and 6-5. Except for one minor change to paragraph (3) of the policy (which is not in issue), neither provision was revised. Also, the EAR did not recommend any changes to either provision. Notwithstanding Petitioner's contention to the contrary, the County was not required to revise the objective or policy. Policy 6.5.2 requires that the County "protect seagrass beds in those areas under County jurisdiction" by implementing certain enforcement measures. County Ex. 1A, Ch. 6, p. 6-5. The policy was only amended in minor respects during the EAR process. Petitioner contends that the County failed to amend the policy, as required by the EAR, and this failure results in no protection to natural resources. However, the EAR only discusses the policy in the Issues section. See County Ex. 1C, § 2, p. 7. While the EAR emphasizes the importance of seagrass beds to marine and estuarine productivity, it has no recommended changes to the objective or policy. Even so, the County amended policy 6.5.2(5) by requiring the initiation of a seagrass monitoring program using Geographic Information System (GIS) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6-6. It is at least fairly debatable that the objective and policy are in compliance. Objective 6.6 requires the County to "protect, conserve and appropriately use Outstanding Florida Waters, Class I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6-6. Its purpose is to ensure the quality and safety of the County's primary drinking water supply. Id. The objective was not amended and remains unchanged since 1999. Except for a recommendation that the County give a land use designation to water bodies, there were no recommended changes for this objective or related policies in the EAR. Because land use designations are for land, and not water, the County logically did not assign a land use to any water bodies. Petitioner contends that the objective and related policies are not based on the best available data and analysis and are not measurable, and that they fail to protect Lake Powell, an Outstanding Florida Water, whose quality has been declining over the years. Because no changes were recommended, it was unnecessary to amend the objective and policies. Therefore, Petitioner's objections are misplaced. Notably, the Plan already contains provisions specifically directed to protecting Lake Powell. See, e.g., policy 6.6.1(1), which requires the County to specifically enforce LDRs for Lake Powell, and objective 6.21, which requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A, Ch. 6, pp. 6-6 and 6-24. Petitioner's expert also criticized the objective and related policies on the ground the County did not adequately identify karst areas in the region. However, nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to collect new data on the existence of karst areas. Petitioner also points out that objective 6.6 and policy 6.6.1 are designed to protect Deer Point Lake but were not amended, as required by the EAR, and they fail to adequately protect that water body. For the reasons expressed in Finding of Fact 55, this contention has been rejected. Objective 6.7, which was not amended, provides that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6, p. 6-8. Related policies, which were not amended except in one minor respect, require that the County implement programs in "Ecosystem Management Areas." These areas are illustrated on Map 6.1 of chapter 6. Petitioner contends that even though they were not amended, the objective and policies are not supported by adequate data and analysis, they fail to contain measurable standards, and they are not responsive to a recommendation in the EAR. Because no changes were made to these provisions, and the EAR does not recommend any specific changes, the contentions are rejected. The 17 water bodies comprising the Sand Hill Lakes are identified in policy 6.9.1. Policy 6.9.3, which also implements objective 6.9, continues the practice of prohibiting development with a density of greater than one unit per ten acres on land immediately adjacent to any of the Sand Hills Lakes outside designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6- (The three Rural Communities in the County have been designated as a STZ and are described in FLUE policy 3.4.4.) The policy has been amended by adding new language providing that "[p]roposed developments not immediately adjacent to, but within 1320 feet of a Sand Hill Lake, and outside of a designated Rural Community, will provide, prior to approval, an analysis indicating that the development will not be too dense or intense to sustain the lake." Id. Other related policies are unchanged. The amendment was in response to a recommendation in the EAR that all goals, objectives, and policies be amended to more clearly define the area around the Sand Hill Lakes within which densities and intensities of land must be limited to ensure protection of the lakes. See County Ex. 1C, § 4, p. 6. Petitioner contends that the amended policy is inconsistent with various statutes and rules because it contains no specific standards for site suitability assessment and does not restrict density bordering on the lake; it does not implement the EAR; it is not based on EAR data and analysis; and it does not contain procedures for monitoring and evaluating the implementation of all policies. Policy 6.9.3 applies to agricultural areas outside of rural communities where the maximum density is now one dwelling unit per ten acres, and to properties that are designated as agriculture timber, which allows one dwelling unit per 20 acres. Contrary to Petitioner's assertion, it does not change the established densities on those land use categories. Before a property owner can convert a land use affected by the policy, the applicant will be required to provide an analysis that the new development will not be too intense or dense to sustain the lake. It is at least fairly debatable that the amendment responds to the EAR recommendation, that it will not increase density, that it is based on sufficient data and analysis in the EAR, and that adequate standards are contained in the policies to ensure proper implementation. Objective 6.11 requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." County Ex. 1A, Ch. 6, p. 6-14. A challenge to an amendment to policy 6.11.3(3), which relates to setbacks or buffers for wetlands, has already been addressed in Case No. 10-0859GM. Policy 6.11.3 provides that in order "[t]o protect and ensure an overall no net loss of wetlands," the County will employ the measures described in paragraphs (1) through (6) of the policy. Petitioner contends that by using the standards employed by state and federal agencies for wetlands in paragraph (2), the County has abdicated its responsibility to protect natural resources. However, as previously discussed, the recent assumption of jurisdiction over isolated wetlands by the Northwest Florida Water Management District allows the County to extend these measures to all wetlands in the County. Petitioner also contends that the term "no net loss" in policy 6.11.3 is not measurable. Through its GIS system, though, the County can monitor any loss of wetlands. This was confirmed by County witness Garlick. In addition, the County will know at the development order phase whether any federal or state agency requires mitigation to offset impacts to wetlands. It is at least fairly debatable that the amendments to policy 6.11.3 will protect all wetlands, including isolated wetlands. Objective 6.12 requires that by the year 2012, the County will "develop a GIS layer that provides baseline information on the County's existing wetlands. This database will be predicated on the USFWS [United States Fish and Wildlife Service] National Wetlands Inventory (Cowardin et al 1979) hierarchy of coastal and inland (wetlands) represented in North Florida. This inventory shall be developed through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands." County Ex. 1A, Ch. 6, p. 6-15. Related policies 6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the GIS database to identify, classify, and monitor wetlands; (b) adopt LDRs which further the objective and policies; and (c) track in the GIS database the dredge and fill permits issued by DEP. Id. Petitioner criticizes the County's decision to wait until 2012 to develop a GIS layer; contends that policy 6.12.2 improperly defers to LDRs; asserts that the policy lacks meaningful standards; and contends it is not responsive to the EAR. The evidence presented on these issues supports a finding that it is at least fairly debatable that the amendments are in compliance. The EAR-based amendments deleted objective 6.13, together with the underlying policies, which related to floodplains, and created new provisions on that subject in the Stormwater Management Sub-Element in Chapter 5E. This change was made because the County concluded that floodplain issues should more appropriately be located in the stormwater chapter. The natural resource values of floodplains are still protected by objective 5E-9 and related policies, which require that state water quality standards are maintained or improved through the County's stormwater management programs. See County Ex. 1A, Ch. 5E, p. 5E-7. Also, "flood zones" are retained as a listed "significant natural resource" in Conservation Element policy 6.2.1. See County Ex. 1A, Ch. 6, p. 6-3. It is at least fairly debatable that the transfer of the floodplain provisions to a new element does not diminish protection of that resource. Finally, Objective 6.21 (formerly numbered as 6.23) requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." Except for renumbering this objective, this provision was not amended, and there is no specific recommendation in the EAR that it be revised. Therefore, the contentions that the existing policy are not in compliance are not credited. Coastal Management Element - Chapter 7 The recommended changes for this element of the Plan are found on pages 7 and 8 of Section 4 of the EAR. In her Proposed Recommended Order, Petitioner contends that the entire element is inconsistent with section 163.3191(10) because the County did not follow the recommendations in items 1, 2, and 4. Those items generally recommended that the County update the data and analysis supporting the element to reflect current conditions for, among other things, impaired waters. This was done by the County. Accordingly, the County adequately responded to the recommendations. Petitioner also contends that policy 7.1.1 improperly deferred protection of coastal resources to the LDRs. The policy reads as follows: 7.1.1: Comply with development provisions established in the [LDRs] for The Coastal Planning Area (Chapter 10, Section 1003.2 of the Bay County [LDRs] adopted September 21, 2004) which is hereby defined as all land and water seaward of the landward section line of those sections of land and water areas seaward of the hurricane evacuation zone. County witness Crelling established, however, that there are numerous other policies in the element that govern the protection of natural resources. Petitioner contends that no changes were made to provide additional guidance in policy 7.2.1 (formerly numbered as 7.3.1) to improve estuarine water quality even though multiple water bodies are listed as impaired. Except for a few clarifying changes, no revisions were made to the policy. Policy 7.2.1 does not reduce the protection for impaired waters. The minor rewording of the policy makes clear that the protective measures enumerated in the policy "will be taken" by the County to maintain or improve estuarine water quality. It is fairly debatable that the element and new objectives and policies are in compliance. Petitioner contends that amended objective 7.2 (formerly numbered as 7.3) will lead to less protection of water quality. The objective requires the County to "[m]aintain or improve estuarine water quality by regulating such sources of pollution and constructing capital improvements to reduce or eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7-2. Its purpose is to regulate all known potential sources of estuarine pollution. The evidence fails to establish that the amended objective will reduce the protection of water quality. Policy 7.3.1 was amended to delete the requirement that areas with significant dunes be identified and mapped and to provide instead that the County may impose special conditions on development in dune areas as a part of the development approval process. See County Ex. 1A, Ch. 7, p. 7-4. This change was made because the EAR recommended that a requirement to map and identify dune systems be deleted due to the "extremely dynamic nature of beach and dune systems." County Ex. 1C, § 4, p. 7. A similar provision in the Conservation Element was transferred to the Coastal Management Element to respond to the recommended change. The County adequately responded to the recommendation. Petitioner contends that amended policy 7.3.2 (formerly numbered as 7.4.1) does not include sufficient standards to protect significant dunes. The amended policy requires that where damage to dunes is unavoidable, the significant dunes must be restored and revegetated to at least predevelopment conditions. It is at least fairly debatable that the standards in the policy are sufficient to protect dunes. In summary, the evidence does not establish beyond fair debate that the revisions to chapter 7 are not in compliance. Housing Element - Chapter 8 Petitioner contends the entire element is inconsistent with section 163.3191(10) because the County failed to react to recommendations in the EAR; and that new objective 8.16 and related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent with section 163.3177(9)(e) and rules 9J-5.005(6) and (7) because they fail to identify how the provisions will be implemented and thus lack specific measurable objectives and procedures for monitoring, evaluating, and appraising implementation. Petitioner focused on item 4 in the Recommended Changes for the Housing Element. That recommendation reads as follows: 4. The revised data and analysis should also include a detailed analysis and recommendations regarding what constitutes affordable housing, the various state and federal programs available to assist in providing it; where it should be located to maximize utilization of existing schools, medical facilities, other supporting infrastructure, and employment centers taking into consideration the costs of real property; and what the likely demand will be through the planning horizon. The objectives and policies should then be revised consistent with the recommendation of the analysis, including the creation of additional incentives, identification on the Future Land Use Map of areas suited for affordable housing, and, possibly amending the County Land Development Regulations to require the provision of affordable housing if no other alternatives exist. County Ex. 1C, § 4, p. 8. Item 1 of the Recommended Changes states that "[t]he County should implement those policies within the Housing Element which proactively address affordable housing, and in particular Policy 8.15.1 outlining density bonuses, reduced fees, and streamlined permitting, to provide incentives for the development of affordable housing." Id. Policy 8.15.1 was amended to conform to this recommendation. The new objective and policies address incentives for the development of affordable housing. While item 4 is not specifically addressed, the new objective and policies address the County's housing concern as a whole, as described in the Recommended Changes. Also, the new objective and policies contain sufficient specificity to provide guidance to a user of the Plan. It is fairly debatable that the element as a whole, and the new objective and policies, are in compliance. Intergovernmental Coordination Element - Chapter 10 Although discussed in the Element Reviews portion of the EAR, there are no recommended changes for this element. See County Ex. 1C, § 3, pp. 1-5. Petitioner contends that because the County deleted objective 10.5, the entire element conflicts with the EAR recommendations, and it is inconsistent with two goals in the state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b) and (h), and rules 9J-5.015 and 9J-5.013(2)(b)8. The deleted provision required the County to "establish countywide resource protection standards for the conservation of locally significant environmental resources." Besides deleting this objective, the County also deleted objective 10.1, which provided that the County "will take the lead role toward the creation of an 'intergovernmental forum' as a means to promote coordination between various jurisdictions and agencies." County Ex. 1A, Ch. 10, p. 10-1. To support her argument, Petitioner relies upon a concern in the Issues part of the EAR that states that "countywide resource protection standards have not been established" and that "consistency of regulation between jurisdictions" must be observed. See County Ex. 1C, § 2, p. 45. Mr. Jacobson, the County Planning and Zoning Director, pointed out that the County currently has numerous interlocal agreements with various municipalities and does not require authorization from the Plan to adopt these agreements. Objective 10.5 was deleted because the County cannot implement its regulations in the various municipalities, and protection of natural resources is addressed in other portions of the Plan. He also noted that the "intergovernmental forum" discussed in deleted objective 10-1 is not required by any statute or rule. It is at least fairly debatable that the element is in compliance and does not violate any statute or rule. (i) Capital Improvements Element - Chapter 11 Petitioner contends that the County failed to implement three recommended changes in the EAR and therefore the entire element is in violation of section 163.3191(10). Those recommendations include an updating of information on the County's current revenue streams, debts, commitments and contingencies, and other financial matters; a revision of policy 11.6.1 to be consistent with Recreation and Open Space Element policy 9.71 with regard to recreational levels of service (LOS); and the development of a five-year schedule of capital improvements. See County Ex. 1, § 4, p.9. Policy 11.6.1 has been substantially revised through the EAR process. Table 11.1 in the policy establishes new LOSs, including one for local parks, regional parks, and beach access points. The County has also adopted an updated five-year Capital Improvement Plan. See County Ex. 36. That exhibit includes a LOS Analysis for recreational services. The same exhibit contains a breakdown of financial matters related to capital improvements. It is fairly debatable that the element is in compliance. Petitioner also contends that objective 11.1 and policy 11.1.1 are not in compliance. Both provisions remain unchanged from the 1999 Plan, and the EAR did not recommend that either provision be amended. The contention is therefore rejected. Other Issues All other issues not specifically addressed herein have been considered and found to be without merit, contrary to the more persuasive evidence, or not subject to a challenge in this proceeding.
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 EAR-based amendments adopted by Ordinance No. 09-36 are in compliance. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 30th day of June, 2011.
