Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The Town of Jupiter and Its Neighbors The Town of Jupiter (Town, Jupiter) is an incorporated municipality located in northeastern Palm Beach County between Interstate 95 (I-95) and the Atlantic Ocean. The Village of Tequesta, the Town of Juno Beach and Jupiter Inlet Colony are adjoining municipalities. Jupiter is also bordered by unincorporated areas of Palm Beach County. The focal point of urban activity in Palm Beach County (County) is the City of West Palm Beach. The dominant community in the County north of West Palm Beach is the City of Palm Beach Gardens, which is south of Jupiter. There is a regional mall, as well as a satellite County Courthouse, in Palm Beach Gardens, both of which are situated on PGA Boulevard. Jupiter is the major center of urban activity north of Palm Beach Gardens. Its market area is sub-regional in scope. Growth in Jupiter: A Brief History The Jupiter of today is much different than the Jupiter of only a few decades ago. In 1960, the Town's population was just 1,058. By 1970, it had increased to 3,136. During the 1970's, the Town more than tripled its population to slightly less than 10,000, but it still was a bedroom community without any significant employment opportunities. This began to change during the next decade. Small businesses, in increasing numbers, started to locate in the Town. They were followed by larger employers. The 1980's saw not only a substantial increase in employment opportunities, but a substantial increase in population as well. The Town now has a population of approximately 28,000 and is becoming a fairly self- sufficient community offering a wide variety services to its residents. There is one existing new car dealership (Dodge) in Jupiter. Two additional new car dealerships (Ford and Cadillac) have been approved and permitted. 2/ Additionally, there are a number of new car dealerships clustered together on Northlake Boulevard in the City of Palm Beach Gardens 3/ less than ten miles from Jupiter to which the Town's residents have access. 4/ There remain only a few tracts of vacant, uncommitted land within the jurisdictional boundaries of the Town. The unincorporated areas surrounding the Town, however, are largely undeveloped. A considerable amount of the growth in Jupiter since the late 1980's can be attributed to the completion of the "missing link" of I-95, a north-south roadway that is the main intra-urban route in South Florida. Until late 1987, I-95 went as far north in Palm Beach County as PGA Boulevard. In late 1987, a new stretch of I-95, from PGA Boulevard to Fort Pierce, including an interchange at Indiantown Road in Jupiter, was opened to the travelling public. The opening of the I-95 interchange at Indiantown Road has enhanced the Town's market potential and contributed significantly to the Town's integration into the broader metropolitan area of greater Palm Beach County. Jupiter does not have a traditional downtown area. Growth has generally occurred along the Town's major roadways, including Indiantown Road, a state roadway which offers the only direct access from I-95 to the Town and therefore serves as the primary gateway to the Town. In recent years, nearly 60 percent of office and other commercial projects in the Town have been located on that segment of Indiantown Road from I-95 to the roadway's eastern terminus at A1A near the coast, a distance of approximately five and a half miles. The initial impact of the fast-paced development on Indiantown Road was to increase traffic congestion and generate complaints that the roadway was becoming a visual eyesore with its "strip commercial" development. At the time, although it was the Town's primary commercial corridor, Indiantown Road had only two lanes, one going east and the other going west. It is now in the process of being widened and transformed into a six-lane, median divided, controlled access roadway. The Planning Process and the Indiantown Road Corridor Study In the fall of 1986, the Town began the laborious process that culminated in the adoption of its Comprehensive Plan more than three years later. During the planning process, the members of the Town Council, Jupiter's governing body, having heard the complaints of residents regarding the negative impact of development on Indiantown Road and the inadequacy of the Town's existing land development regulations to deal with the situation, determined that a study should be undertaken to develop a comprehensive strategy to address these problems. Of particular concern to the Council members were issues relating to traffic and aesthetics. In November, 1988, the Council retained Henry Skokowski, a planning consultant, to conduct such a study. Skokowski was specifically directed by the Council to, among other things, examine the various types of commercial land uses and determine those that should be permitted and those that should be prohibited in the Indiantown Road corridor. Skokowski's initial draft of the results of his study was submitted to the Council in February, 1989. The Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs for its review and comments in April, 1989. The Council accepted Skokowski's final draft of the results of his study in the latter part of 1989. The final draft was virtually identical in substance to Skokowski's initial offering. In both, he recommended, among other things, that certain commercial land uses, including "auto . . . sales," that he reasonably felt did not mesh with the desired overall character of the corridor, be absolutely prohibited, without exception, throughout the length of the corridor. 5/ This recommendation, from the outset, was the subject of considerable public debate and discussion before the Town Council. Skokowski endorsed a nodular pattern of development for the corridor. Under his plan, the corridor would contain six urban subdistricts, each having as their focal point a major intersection, with the remaining portions of the corridor consisting of parkway subdistricts with suburban characteristics reflecting a less intensive commercial development pattern than found in the urban subdistricts. From west to east, the six urban subdistricts, which constituted nodes of development, were the Central Boulevard District, the Center Street Landmark District, the Maplewood Drive District, the Civic District, 6/ the Alternate A1A District and the US 1 District. Through the creation of a special overlay zone for the corridor and the adoption of regulations restricting the permitted uses of land 7/ and establishing design, landscaping, and signage requirements on a subdistrict by subdistrict basis, Skokowski envisioned that each subdistrict would develop an identity that was not only distinctive and unique, but compatible with, and reflective of, community values unlike the strip commercial development that then existed in the corridor. Throughout the course of his study, Skokowski met regularly with those who were responsible for drafting the Town's Comprehensive Plan. He also met with the Executive Director of the Palm Beach County Department of Planning, Building and Zoning in an effort to obtain input from the County regarding anticipated development on or around Indiantown Road. In response to Skokowski's request, the Department's Executive Director promised to provide the Town with notification of any proposed zoning actions in the unincorporated areas of the County. Skokowski did not meet with any representative of either the Palm Beach County Metropolitan Planning Organization or the Treasure Coast Regional Planning Council prior to the completion of his study. On January 16, 1990, the Town Council adopted the Town of Jupiter Comprehensive Plan. The Department of Community Affairs has determined that the Plan is "in compliance." Contents of the Comprehensive Plan: A General Overview The Town's adopted Comprehensive Plan contains nine different elements: future land use; traffic circulation; housing; infrastructure; conservation; coastal management; recreation; intergovernmental coordination; and capital improvements. Each element has at least one goal 8/ and objective 9/ and has policies as well. 10/ Some elements also contain maps. One such element is the future land use element, which contains a future land use map. The map employs six land use classifications: residential; commercial; industrial; recreation; conservation; and public/institutional. Most of the land area in the Indiantown Road corridor is designated for commercial use on the future land use map. Approximately two-thirds of the total land area in the Town that is designated for commercial use on the future land use map is located in the Indiantown Road corridor. Each of the elements of the Town's adopted Comprehensive Plan was based upon "data inventory and analysis." The Town Council adopted this "data inventory and analysis" as part of the Plan. Contents of the Comprehensive Plan: Goals, Objectives and Policies The following is the lone goal set forth in the Plan's future land use element: Ensure that the future land use pattern maintains the existing low intensity, residential character, recognizes and protects the environmental quality of the Town, and allows the Town to become a full- service community 11/ serving Northern Palm Beach County. Objective 1.1 of the future land use element addresses the subject of "managed growth." It provides as follows: Direct future growth into areas served by urban services that have adequate capacity, as defined by the adopted level of service standards, which shall be incorporated into the Town's development regulations by May 1990. The following are among the policies in the future land use element that further address the subject of "managed growth:" Policy 1.1.1- All development shall be approved only if the level of service standards as set forth in Policy 1.2.1 of the Capital Improvement Element are met concurrent with the impact of the proposed development. These standards shall be integrated into the land development regulations. Policy 1.1.4- Commercial shopping centers in excess of 80,000 square feet should be located only at intersections of major arterials. Policy 1.1.5- Strip or highway commercial development shall be discouraged. Policy 1.1.6- A commercial corridor study of Indiantown Road is to be undertake[n] in 1989. This will result in a coherent, comprehensive strategy for this major roadway 12/ containing streetscape guidelines and site development standards 13/ that will be integrated into the Town's land development regulations. 14/ Policy 1.1.7- Concentrations of commercial offices, and tourist related activities shall be near locations having high accessibility. Policy 1.1.8- Non-residential outdoor storage areas shall be screened and buffered from adjacent residential uses. Policy 1.1.13- The town through its Coastal Construction Code and its future land use map shall minimize the intensity and density of future development within coastal areas vulnerable to hurricane damage. Policy 1.1.14- The impact of land use on water quality and quantity shall be considered in land use planning and regulation. This shall be assured by inclusion of provisions in the Land [D]evelopment Regulations for consideration of the impacts of proposed development on water quality and quantity. These considerations shall include the provisions of Conservation Element Policies 1.4.1-13 for surface water quality, 1.3.1-13 for groundwater quality, Infrastructure Element Policies 1.1.2 for wellfield protection, 1.5.1 for protection of potable water supply and 1.6.1-5 for protection of groundwater quality and quantity. Objective 1.2 of the future land use element addresses the subject of "land use compatibility." It provides as follows: By May 1990 the land development regulations shall contain provisions and standards which ensure that future growth patterns take into consideration topography, soil and other natural and historic resources, the intensities, densities and type of land use activities and relationship to surrounding properties, as well as providing for streetscaping, proper transition of land uses, buffering, and coordination of coastal population densities with the Palm Beach County Hurricane Evacuation Plan. The following are among the policies in the future land use element that further address the subject of "land use compatibility:" Policy 1.2.1- Where there are differences between residential uses in terms of intensity and type of units, adequate transitioning shall be accomplished through provisions such as setbacks, buffers and height limitations. The land development regulations adopted to implement the Comprehensive Plan shall contain such provisions to assure adequate transitioning. Policy 1.2.3- Where existing land use conflicts exist, the Town shall incorporate into its land development regulations provisions that address noise, dust, lighting and aesthetics. The Town shall support increasing the depth of property(s) in areas where existing lots are shallow (less than 150 feet in depth), are situated adjacent to an arterial roadway, have a commercial or industrial land use designation, and abut residentially designated land; however, the land development regulations shall contain adequate buffering and performance criteria for concerns noted above. Policy 1.2.4- Existing land uses which are not compatible with adjacent land uses, the character, natural resources or the future land use plan shall be eliminated upon redevelopment, and until that time may not be expanded. This requirement shall be included in the revision to the local development regulations to be adopted by May 1990. Objective 1.3 of the future land use element addresses the subject of "land development regulations." It provides as follows: The Town shall prepare land development regulations that effectively implement all provisions of the adopted Comprehensive Plan, contain innovative techniques for the production of affordable housing, provide a means to protect environmentally sensitive areas and maintain flexibility in site design. In addition the Town shall encourage the use of innovating land development regulations such as the Town's existing provisions for PUD and other land development techniques. The following are among the policies in the future land use element that further address the subject of "land development regulations:" Policy 1.3.3- Adopt land development regulations that shall contain specific and detailed provisions required to implement the adopted Comprehensive Plan, and which at a minimum address: subdivision of land signage wellfield and aquifer protection drainage and stormwater management periodic flooding open space needs off-street parking environmentally sensitive areas/habitats In addition, these regulations shall ensure that development orders and permits not be issued which result in a reduction of the levels of service for the affected public facility below the adopted level of service of standards as set forth in the Comprehensive Plan. Policy 1.3.4- The concept of an environmental[ly] sensitive area overlay zone will be incorporated into the current Zoning Ordinance. This concept will be folded into the new development code at the time the current Zoning Ordinance and other local development regulations are consolidated into one regulatory document. Policy 1.3.5- The [L]and [D]evelopment Regulation shall include the following non- residential land use categories, and shall incorporate the following location and intensity criteria: Commercial Neighborhood Commercial- Stores offering frequently needed goods and services to nearby residential areas. Typical activities include pharmacy, dry-cleaning, florist, hardware and garden supplies, professional offices, and personal services. Location Criteria: In areas accessible to immediate surrounding neighborhoods; Can be located in conjunction with groups of retail or highway commercial uses to achieve greater consumer volume and multi- purpose trips; When a part of a planned unit development must be situated in the interior of the project and not along an external roadway; In areas where water supply and sewerage facilities services are available. Intensity measures: Site area- minimum 20,000 sq. ft. maximum 2 acres Site coverage maximum- 35% Height limitation- 35 feet/2 stories General Commercial- Consists of a wide range of commercial goods and services serving a community-wide market. A representative sample of activities includes personal services, banking and finance offices, retail stores, nurseries, printing and publishing, auto repair, marine facilities, and medical and dental clinics. Location Criteria: At major intersections, or existing commercial core areas; Central to and/or readily accessible from all residential areas of the community; Preferably grouped with other stores in this category to achieve a combined market draw on multi-purpose trips; Not adjacent to low density, single family neighborhoods; Adjacent to Medium Density Residential areas when proper buffering is provided; Situated preferably on an arterial roadway, but never on a local street; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Office Commercial- Activities that generally do not entail sale or display of goods and do not require high visibility from major roadways. Typical uses include legal, financial, realty, technical and some medical service establishments. May also contain retail uses that directly serve the needs of the office businesses. Location Criteria: Location needs are often determined by type of service (attorney near courthouse, physician near hospital, etc.); Attractive or prestigious setting often desired; suitable for location near multi- family housing to serve as a transitional use between more intensive commercial and industrial uses; In some instances may locate adjacent to low density residential neighborhood only when height is limited to one story, less than 35% of project site utilized for structure(s) and adequate buffering provided; May locate in industrial park however should be located in designated tract of land in park; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Heavy Products Commercial- Activities that sell large or bulk products or maintains large inventories of products. These usually serve a sizeable market area and are often similar to or part of industrial activities. Building materials, heavy machinery and wholesale establishments are typical heavy commercial uses. Location Criteria: Parcels should be accessible from outlying service areas and near primary routes for shipping and receiving goods (highways, rail); Should be spatially separated from residential areas; Should not be located in proximity to other commercial activities, e.g., retail stores, offices; Suitable siting is near or in industrial areas due to similar location and transportation needs; In areas where water supply and sewerage facilities services are available. Intensity Measures: Site coverage maximum- 35% Building height maximum- 35 feet Industrial * * * Conservation * * * Public/Institutional * * * Objective 1.4 of the future land use element addresses the subject of "economic development." It provides as follows: To expand and diversify the economic base through the provision of adequate sites and timely provision of public utilities and services to stimulate such growth. Policy 1.4.1 is among the policies in the future land use element that further address the subject of "economic development." It provides as follows: Higher densities and intensities of development shall be located in areas having high accessibility and a full complement of public facilities (e.g., water, sewer), that have adequate capacity to maintain the adopted levels of service. Policies 1.1.7, 1.1.8 and 1.1.9 of the Plan's intergovernmental coordination element each reference the Indiantown Road corridor study. They provide as follows: Policy 1.1.7- Jupiter shall seek the active involvement by the Florida Department of Transportation (FDOT) in this study to provide input about the State's plans for the roadway, and FDOT shall formally review the resulting development strategy for compatibility with FDOT plans. Policy 1.1.8- Jupiter shall seek the active involvement of the Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO) in the study to provide input about anticipated development along and around the roadway and its impact on traffic circulation and development within Jupiter. The County and MPO shall have formal review of the resulting development strategy to ensure compatibility with County and MPO plans. Policy 1.1.9- Jupiter shall seek the active involvement of the Treasure Coast regional Planning Council in the study to provide technical assistance and informal mediation among the Town, County, MPO and FDOT, if necessary. Immediately preceding these three policies is the statement that "[a] commercial corridor study of Indiantown Road is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway." 15/ Contents of the Comprehensive Plan: Data Inventory and Analysis The goals, objectives and policies of the Town's Comprehensive Plan can be better understood if they are read in conjunction with the "data inventory and analysis" portion of the Plan. For instance, an examination of the following excerpts from the "data inventory and analysis" portion of the Plan provides considerable assistance in understanding what the Town Council meant when it announced in the goal of the future land use element that it desired that the Town "become a full-service community serving Northern Palm Beach County:" Growth Management Philosophy Until the advent of the '80s, Jupiter was one those hidden treasures [i]n the Treasure Coast region. . . . In 1980, Jupiter was basically a "bedroom" community; however, with recent annexations, the Town now contains over 400 acres planned for industrial park usage. Therefore, Jupiter is now evolving into a "total service" community. To maintain a community that maximizes quality of life, the following growth principles and strategies will be the basis for future growth decisions: Land use decisions . . . will be made within the context of the Greater Jupiter Area 16/ since certain uses within the existing Town limits serve a "market area" that extends considerably beyond the present jurisdictional limits. It is anticipated that the Town's employment base will expand significantly in the coming years as the planned industrial parks, and office/ business centers come on line. The residential character of the Town will remain one of low intensity, a more human scale of residential living. Future residential areas will be developed only in areas with adequate human service. 17/ * * * Being the major urban hub of north county, retail and office businesses located in Jupiter depend on a population base that is considerabl[y] larger than just the existing population residing within the present Town limits. Residential areas to the north, especially along Loxahatchee River Road and to the west, primarily from the Jupiter Farms area shop and do business in Jupiter. 18/ * * * Community shopping centers require a wider market area [than neighborhood shopping centers]. 19/ The Jupiter Mall would be an example of such a retail center. Based on the Town's projected 1995 population (46,900), only one such shopping center is justified. However, because Jupiter is a commercial hub serving much of the County, north of Donald Ross Road, another such center might be justified. Prior to any approval, a market study should be required in order to avoid the problem of overcommercialization. The analysis should include all commercial development in north county, not just limited to Jupiter's corporate Town limits. Leading tenants include variety store and small department store. 20/ * * * Historically the Town has had only a minor amount of land utilized for industrial purposes. Until recent years, it has considered itself a residential, bedroom community; however, that philosophy has changed. It now sees itself as a "total" community. This means the creation of a major employment base. 21/ * * * IMPORTANT POLICY ISSUES 1. Town image, e.g., bedroom community, full service town. 22/ The following references to the Indiantown Road corridor are made in the "data inventory and analysis" portion of the Plan: Development in the Indiantown Road corridor can generally be described as uncontrolled strip commercial, often experiencing traffic congestion and presenting a poor visual image to visitors. As Jupiter has grown no definitive urban center has emerged. Growth has occurred generally along the Town's major roadways. Consider as a long-range strategy the creation of a traditional downtown. 23/ * * * Nearly 60% of the commercial/office projects have been located within the Indiantown Road corridor. . . . Over the past decade Indiantown Road (SR 706) has experienced increased periods of traffic congestion. This has occurred as commercial development along this main artery has mushroomed. Lack of lot depth as well as overall size have created a "hodgepodge" commercial development pattern along SR 706 which has lead to a traffic headache, as well as a visual eyesore. The problems of Indiantown Road are compounded since it will serve as Jupiter's major entryway once Interstate 95 is completed and the entrance on SR 706 is opened. 24/ Consideration should be given to a special overlay zone for Indiantown Road. In developing the overlay zone determining what constitutes the Indiantown Road corridor (depth of property along the roadway), establishing the desired character of the corridor, 25/ and preparing a special set of standards e.g., signage, off-street parking, buffering, to control development would be necessary. Although Indiantown Road is the most obvious example of strip commercial development other local roads are afflicted with the same problem, however maybe not to the same degree. Yet, there are several areas in and around Jupiter that are developing more in a node fashion than in a linear commercial strip. Not only is the Town beset by this commercial problem, but has been faced with possible intrusion of commercial into residential neighborhoods. Precautions need to be taken to make sure that neighborhood integrity remains intact. 26/ * * * [S]imilar to the Town's proposed land use designation within the Indiantown Road corridor, the County too, has proposed that commercial development be allowed along this roadway. A concern the Town has is the manner in which it is developed. This is especially important, because the Indiantown Road corridor is the gateway into Jupiter. To date, the development has reflected a rather non-descript, strip commercial pattern. The Town has been sufficiently concerned that it has contracted to have an urban design corridor study completed for this key roadway. 27/ Design recommendations will become a part of the Town's land development regulations. Coordination between the two governing bodies will be needed at the time the local development regulations are prepared. 28/ * * * The majority of land use conflicts occur in those areas where commercial and industrial uses abut residential neighborhoods. This has been a problem along Indiantown Road. The proposed siting of a cement batch plant in the Pennock Industrial Park created considerable controversy over the potential adverse impacts, e.g., noise, dust, light, visual image, and aesthetics. Similar concerns have been voiced over the potential negative impacts generated by strip shopping centers and car dealerships, as well. Much of the development in this major traffic corridor occurred at a time when Jupiter was a much smaller, rural community. Some of the development predates landscape and signage requirements. Because the land along Indiantown Road was subdivided over twenty years ago, many of the lots along the road are very shallow. This causes problems in providing for adequate transition and buffering from adjacent residential uses. The Town has been encouraging combining of lots to create additional depth that can allow for better site design and buffering. Also, the Town has adopted the Indiantown Road Urban Corridor Study, and will be integrating many of its recommendations into updated development regulation[s]. The study has recommended the creation of an "Indiantown Road Overlay Zone." 29 / This district will contain additional provisions related to design guidelines and streetscape standards so that development within the Town's major corridor achieves some logical, overall design. 30/ * * * IMPORTANT POLICY ISSUES . . . 2. Gateway into Town; . . . Depth of commercial along Indiantown Road; Strip commercial development vs. a node policy; . . . 9. Maintaining areas in residential use by eliminating pressures of commercial development; * * * Besides the commercial demands of the local population, [with] the opening of Interstate 95 Exit on Indiantown Road in conjunction with the existing Florida Turnpike exit on Indiantown Road, it can be expected that there will be significant increased demands for interchange commercial uses to serve the traveling public. 31/ Already a number of inquiries have been made to staff regarding the Town's position relative to development around these interchange areas. This will become the gateway to Jupiter. The commercial development pattern that ultimately emerges within the corridor can visually replicate what already exists, or can become a "memorable["] entryway leading into Jupiter. The concept of an overlay zone for the Indiantown Road corridor should be considered. 32/ * * * Most neighborhood and community shopping centers are located on major roadways, primarily at the intersections of designated arterials such as Indiantown Road and Central Boulevard, Indiantown Road and U.S. 1 and Indiantown Road and Alternate A1A. Future siting of shopping centers, especially those with 100,000 leasable floor area and up should be situated at locations having good access and sufficient roadway capacity to maintain the Town's adopted level of service. Further, they should be located so that the only access is from one road. 33/ * * * The existing major roadways identified in the functional classification are shown on Exhibit 1 . . . and are summarized below. . . Principal local arterials 34/ . . . f. Indiantown Road from U.S. 1 to west town limit Collector streets 35/ Indiantown Road from County Road A1A to U.S. 1 36/ * * * The level of service analysis shown on Exhibit 1 indicates severe capacity deficiencies for east/west travel on Indiantown Road. From Center Street to U.S. 1 and west of the Turnpike, this facility operates at Level of Service "E" which is characterized by very long vehicle delay and long traffic queues such that forced vehicular flow conditions exist much of the day. . . . The five-year programs of the Florida Department of Transportation and Palm Beach County will provide relief for some of the congestion presently experienced in Jupiter. As shown on Exhibit 2 . . . , construction is planned to be undertaken within five years to improve Indiantown Road. Indiantown Road is scheduled to be widened to a six-lane cross section from east of Center Street to east of Alternate A-1-A in fiscal year 1989/1990. Indiantown Road from Florida's Turnpike west to Jupiter Farms Road is planned to be widened to four lanes in the fiscal year 1991/1992. . . . The only existing deficiencies not currently "planned" to be improved is the six-laning of Alternate A-1-A south of the Loxahatchee River Bridge to Center Street and Indiantown Road from Alternate A-1-A to U.S. 1 to six lanes. . . . Designing and obtaining right- of-way for the Indiantown Road Intracoastal crossing (Alternate A-1-A to U.S. 1) is also programmed for FY 89/90, 90/91, respectively. The responsibility for improvement of these facilities is primarily that of the Florida Department of Transportation. 37/ * * * Improvements to Indiantown Road will greatly improve the east/west access within the Town. 38/ * * * The future major streets are shown by functional classification on Exhibit 3 . . . and are summarized as follows. . . . Principal local arterials . . . g. Indiantown Road from Alternate A-1-A to I-95. . . Collector streets Indiantown Road from County Road A-1-A to U.S. 1 39/ * * * At buildout the proposed coastal population densities in the surge vulnerable areas in the Town of Jupiter will be 31,5000 residents. This represents a 230 percent increase. The evacuation routes to accommodate evacuation vehicles will have capacities as follows: -Indiantown Road at six lanes 40/ * * * The proper strategy to follow would be to conserve and maintain or in fact upgrade some of the older residential areas in the Indiantown Road/Center Street area. The Town has been implementing such a policy. The Town has had an ongoing series of drainage and road improvement projects. This effort is continuing with the present focus on the area immediately south of Indiantown Road bounded on the east by Old Dixie. . . . The Town has taken steps since the adoption of its present land use plan to eliminate those uses inconsistent with the community's character and proposed future land uses. Some methods that have been employed are the deepening of commercial frontage along Indiantown Road, adding increased depths to buffers between conflicting land uses and not allowing the re-establishment of non- conforming land uses. 41/ * * * Intergovernmental coordination is necessary in order to implement the following policies: POLICY: A commercial corridor study is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway. Issues for coordination/cooperation: Indiantown Road (SR 706) is owned and operated by the State. It is a major arterial for the unincorporated County area west of Jupiter, and development approved along it and in its vicinity can impact traffic conditions within Jupiter to a significant degree. Agencies involved: Florida Department of Transportation Palm Beach County Metropolitan Planning Organization (MPO) Palm Beach County Department of Planning, Building, and Zoning Treasure Coast Regional Planning Council Recommended methods for coordination/ cooperation: FDOT representatives should be involved closely in the study to provide guidance about the State's plans for the roadway, and FDOT should formally review the resultant development strategy for compatibility with FDOT plans. The Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County MPO should be involved closely in the study to provide guidance about anticipated development along and around the roadway and its impacts o[n] traffic circulation and development within Jupiter. The County should have formal review of the resultant development strategy to ensure compatibility with County plans. The Treasure Coast Regional Planning Council should be involved in the study to provide technical assistance and informal mediation among the Town, County, and FDOT, if necessary. 42/ The "data inventory and analysis" portion of the Plan indicates that the future land use plan includes "commercial uses" among its land use categories. It then goes on to give the following definition of such "commercial uses:" Commercial uses- means activities within land areas which are predominantly connected with the sale, rental, consumption, and distribution of products or performances of professional and non-professional services. The Town Council may approve the use of such land areas for residential purposes provided a rezoning to a residential zoning district is approved and the rezoning is implemented by a planned unit development. The following discussion appears under the subheading of "Land Use Performance Standards" in the "data inventory and analysis" portion of the Plan: The land use classification system described allows for flexibility. Specific protection should be developed and included at the time the local development code is revised to bring it into compliance with the Comprehensive Plan. It is recommended that the following criteria serve as the basis for permitting any land use change. These along with other provisions and policies of all Comprehensive Plan elements will have to be met in order to receive a development order. The recommended performance standards are as follows: Compatibility with surrounding land uses Intensity of use Adequacy of facilities -water services -sewer services -roadway access -fire and police service Environmental impact Following the recitation of the foregoing "recommended performance standards," the statement is made that "[i]n evaluating any proposed land use change as well as any other development approval requirement the Town shall take into consideration . . . whether or not the proposed change complies with the [same] location criteria" that are set forth in Policy 1.3.5 of the future land use element. The "data inventory and analysis" portion of the plan gives the following description of the three major categories of land use problems that the Town should strive to avoid or at least minimize through the planning process: Misuse of Land Widely scattered land development results in a pattern which is more costly to provide with essential services; Construction of buildings in flood prone areas results in damage to property, danger to life and added financial burdens on the [Town] for providing flood abatement measures; Land and water resources are destroyed by scattered substandard development; and Less than adequate room for expansion of businesses and industry result in congestion and inharmonious growth. Conflicting Uses of Land Encroachment of business and industrial uses into existing or emerging residential areas results in instability of these residential neighborhoods; and Unplanned mixing of various land uses results in incompatible relationships among various activities which cause deterioration of the overall environment. Overuse of Land Inadequate provision of off-street parking causes encroachment of residential neighborhoods by traffic seeking parking; Strip development along major highways results in reduced traffic capacity and increased traffic congestion; Excessive land coverage by buildings and parking areas results in inadequate open space; and Poorly conceived site and building design standards can result in overuse of land. Ordinances Creating the Indiantown Road Overlay Zoning District In March, 1990, the Town Council adopted a series of ordinances that incorporated, in all respects material to the instant case, the above-described "comprehensive strategy" that Skokowski had devised for the Indiantown Road corridor. These ordinances amended the Town's zoning code by creating the Indiantown Road Overlay Zoning District (I.O.Z.). The I.O.Z. is codified in Section 517 of the code, which describes the I.O.Z.'s purpose and intent as follows: The purpose and intent of this specialized overlay zoning district is to encourage and provide for enhanced property development within the Indiantown Road corridor. Objectives to be attained through the establishment of this district include protection of adjacent residential land uses; enhancement of the commercial status of the corridor; reduction of visual distraction through uniform sign criteria; enhancement of physical appearance through increased landscaping of public and private property; clustering of compl[e]mentary uses throughout various locations along the corridor; provisions of architectural design guidelines within specific locations along the corridor; encourage the construction of pedestrian oriented facilities in both public and private structures; installation of special landscape and architectural features at major intersections; and establish development incentives to accomplish these objectives. Before the Town Council took final action on the matter, the Town's Director of Community Development provided the Florida Department of Transportation (DOT) with a copy of what was to become Section 517 and asked DOT to favor the Town with its comments. DOT, however, declined to do so. The ordinances adopted by the Town to effectuate the creation of the I.O.Z. were Ordinances 14-90, 15-90, 20-90, 21-90, 22-90, 23-90, 24-90 and 25- 90. 61. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 divided the Indiantown Road Overlay Zoning District into parkway subdistricts and five urban subdistricts: the Central Boulevard District; the Center Street/Maplewood Drive District; 43/ the Civic Center District; the Alternate A1A District; and the U.S. Highway One District. Ordinance 14-90 imposed design, landscaping, and signage requirements applicable to these subdistricts. Ordinance 15-90 further restricted the land use activities permitted in these subdistricts. The underlying zoning district of most of the land area in the Indiantown Road corridor is "C-2" (Commercial, General), in which 41 commercial land use activities are permitted, 11 by right and 30, including automobile sales, by special exception. Ordinance 15-90 absolutely prohibits, without exception, anywhere from 11 to 18 of these 41 commercial land activities, depending upon the subdistrict. Automobile sales are absolutely prohibited throughout the corridor. Attachments 1-11 appended to this Final Order show each of the land use activities that were permitted, by right or special exception, in each subdistrict prior to the adoption of Ordinance 15-90 and the changes, if any, made by Ordinance 15-90 to their status as permitted activities. Relationship of the I.O.Z. to the Comprehensive Plan Section 517.3 of the Town's zoning code states that "[t]he establishment of the IOZ [as codified in Section 517] is hereby declared consistent with the Town of Jupiter Comprehensive Plan." It has not been shown that it is beyond reasonable debate that, in making this declaration, the Town Council, which only a couple of months earlier had adopted the Town of Jupiter Comprehensive Plan, was in error. A reasonable argument may be made that the I.O.Z (Section 517 of the Town's zoning code) and its component parts, including the use restrictions imposed by Ordinance 15-90, are compatible with the Plan and take action in the direction of realizing the Town's aspirations, as announced in the Plan, with respect to the Indiantown Road corridor. The I.O.Z. is a "coherent, comprehensive strategy" for the Indiantown Road corridor that employs "the concept of an overlay zone" and a "node policy" of development (as opposed to linear, "[s]trip commercial") and is reasonably designed to allow this roadway to "become a 'memorable' entryway leading into Jupiter." The use restrictions imposed by Ordinance 15-90 are an integral part of this "coherent, comprehensive strategy." They play a role in "establishing the desired character of the corridor." Ordinance 15-90 is not at variance with any of the land use designations made on the Plan's future land use map, including those designating land in the Indiantown Road corridor for commercial use. While the ordinance absolutely prohibits certain land use activities, those that it allows are in keeping with the map's land use designations. For instance, the activities it permits on land designated on the map for commercial use, which is most of the land in the corridor, are indeed "commercial uses," as that term is defined on page I-30 of the "data inventory and analysis" portion of the Plan. Because the ordinance permits these "commercial uses" throughout much of the corridor, it furthers the Plan's vision of the Indiantown Road corridor as an area where commercial development predominates. There is no inconsistency or conflict between Ordinance 15-90 and the goal of the future land use element of the Plan. It has not been demonstrated beyond reasonable debate that the ordinance will prevent the Town from fulfilling its desire, as expressed in the goal of the future land use element, of completing its transformation from a bedroom community to one that offers, in addition to housing, job opportunities and goods and services accommodating the needs of the residents of the Greater Jupiter area that cannot be adequately met by surrounding communities. To become a "total" or "full-service" community Jupiter need not offer every conceivable good and service in the marketplace. Accordingly, it may absolutely prohibit within its jurisdictional boundaries certain commercial land use activities that involve specialized goods and services that are available elsewhere in the region and still reach its goal of becoming a "total" or "full- service" community. Moreover, Ordinance 15-90 applies only to the land area within the Indiantown Road corridor, which, as noted above, contains approximately two- thirds of the Town's commercially designated land. The remaining land area in the Town designated for commercial use is unaffected by the ordinance and unencumbered by its land use restrictions. Therefore, even if, in order to become a "total" or "full-service" community, the Town was required to offer within its jurisdictional boundaries those goods and services that are unavailable in the Indiantown Road corridor as a result of Ordinance 15-90, the Town would still be able to meet this requirement because the ordinance does not preclude the Town from offering these goods and services in commercially designated areas in the Town that are outside of the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.5 of the future land use element of the Plan. While the land use activities absolutely prohibited by Ordinance 15-90 tend to require larger lot sizes, have generally lower traffic generation rates and are less likely to be found in "[s]trip commercial" developments than certain land use activities permitted by the ordinance, it has not been shown that it is beyond reasonable debate that these prohibitions will likely result in the "[s]trip or highway commercial development" that Policy 1.1.5 seeks to discourage. Ordinance 15-90 renders ineffective neither the requirements of the Plan 44/ nor those of the remaining portions of the I.O.Z. designed to combat and prevent "[s]trip or highway commercial development." The ordinance works, not at cross-purposes with these requirements, but in tandem with them, imposing additional, rather than conflicting, restrictions on development in the Indiantown Road corridor. Under the regulatory framework established by the Town through the adoption of the Plan and the I.O.Z., a proposed development that meets the requirements of Ordinance 15-90, but is inconsistent with the anti-strip commercial provisions of the Plan and the remaining portions of the I.O.Z., will not be approved. Accordingly, Ordinance 15-90 will not have the effect of enhancing the potential for the occurrence of "[s]trip or highway commercial development" in the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.6 of the future land use element of the Plan. As noted above, Policy 1.1.6 references the Indiantown Road corridor study and indicates that this study "will result in a coherent, comprehensive strategy for this major roadway containing streetscape guidelines and site development standards that will be integrated into the Town's land development regulations." While the use restrictions imposed by Ordinance 15-90 are neither "streetscape guidelines" nor "site development standards," Policy 1.1.6 does not mandate that the "coherent, comprehensive strategy" resulting from the Indiantown Road corridor study include only "streetscape guidelines" and "site development standards." Given that use restrictions are typically included in a "comprehensive strategy" for a roadway corridor and that there was considerable public debate preceding the adoption of the Plan concerning Skokowski's recommendation (which was ultimately incorporated in Ordinance 15-90) that certain use restrictions be included in a "comprehensive strategy" for the Indiantown Road corridor, it is reasonable to assume that, had the Town Council intended that such use restrictions not be a part of the "comprehensive strategy" envisioned in Policy 1.1.6, it would have so specified in that policy or elsewhere in the Plan. Its failure to have done so reflects that the Town Council had no such intention at the time it adopted the Plan. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.3.5 of the future land use element of the Plan. As mentioned above, Policy 1.3.5 directs, among other things, that the Town's land development regulations include, within a commercial land use category, the subcategories of "Neighborhood Commercial," "General Commercial," "Office Commercial," and "Heavy Products Commercial" and it gives a representative sample of activities that would fall into each of these subcategories. In addition, the policy prescribes location and intensity criteria for each of these subcategories. Policy 1.3.5 does not require the Town, in its land development regulations, to permit in areas that meet the location criteria of a particular subcategory all of the commercial land use activities that may fall within that subcategory. Accordingly, as it has done in Ordinance 15-90, the Town may prohibit some of these activities without running afoul of the mandate of Policy 1.3.5. Policy 1.3.5 does impose upon the Town the obligation to permit a "Neighborhood Commercial," "General Commercial," "Office Commercial," or "Heavy Products Commercial" land use activity only in those areas that, according to the policy's location criteria, are suitable for that particular activity. There has been no showing that the various commercial land use activities permitted by Ordinance 15-90 are allowed to take place in areas that do not meet the location criteria prescribed in Policy 1.3.5. If anything, the evidence establishes the contrary. There is no inconsistency or conflict between Ordinance 15-90 and Policies 1.1.7 and 1.1.8 of the intergovernmental coordination element of the Plan. As indicated above, Policies 1.1.7 and 1.1.8 provide that, in the development of the Indiantown Road corridor study, the Town "shall seek the active involvement" [of] the Florida Department of Transportation" (DOT), as well as the "Palm Beach County Department of Planning, Building and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO)," to provide appropriate input. In conducting his study of the Indiantown Road corridor, Skokowski sought the "active involvement" of the Palm Beach County Department of Planning, Building and Zoning. He did not seek DOT's input, 45/ but the Town's Director of Community Development, prior to the Town Council's adoption of the I.O.Z., did. Accordingly, in adopting Ordinance 15-90 and the other ordinances that were based upon Skokowski's Indiantown Road corridor study, the Town Council did not act in derogation of the requirements of either Policy 1.1.7 or Policy 1.1.8 of the intergovernmental coordination element of the Plan. Petitioner's Challenge to the I.O.Z.'s Use Restrictions Petitioner owns approximately 680 acres of land in Jupiter, including land situated in the Indiantown Road corridor that is subject to the use restrictions imposed by Ordinance 15-90. It acquired 640 of these 680 acres in 1981 and the remaining acreage in 1987. Petitioner has been developing this property since its acquisition. A golf course and residential community have already been completed. Work has begun on a 40-acre commercial project located in the Maplewood Drive/Indiantown Road area. Petitioner desires to build an auto campus as part of this project, but is unable to do so because Ordinance 15-90 absolutely prohibits automobile sales from occurring on the land. On or around December 10, 1990, Petitioner sent a petition to the Mayor of Jupiter, the body of which read as follows: This petition is submitted on behalf of Restigouche, Inc. [Petitioner] pursuant to Fla. Stat. #163.3213(3) and Rule 9J-24.007 of the Florida Administrative Code. The purpose of this Petition is to challenge the consistency of such portions of [the] Indiantown Road Overlay Zoning District Ordinance, as adopted by the Town of Jupiter under Ordinance 15-90. These portions define permitted uses, uses permitted by special exception and prohibited uses within the IOZ. Section 517 of the Zoning Code was adopted by several ordinances[.] Ordinances 14-90 and 15-90 were adopted March 6, 1990. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 were adopted March 20, 1990. Ordinance 15-90 reduces the allowable uses of the property owners within the IOZ. The underlying zoning category for Restigouche's property in the Maplewood/Center Street District is C-2. Table 1 of the IOZ contains a list of 41 uses available to property within Zoning District C-2 by right or by special exception. The table shows that the uses for property within the IOZ have been reduced to the extent that those uses designated as "X" have moved from permitted by right or special exception to prohibited uses. Ordinance 15-90, which incorporates this down zoning, is inconsistent with the Comprehensive Plan of the Town of Jupiter as adopted by the Town Council January 16, 1990. The Comprehensive Plan does not allow for the creation of a district along the Indiantown Road Corridor that would limit uses from those as stated in the appropriate underlying zoning district. The Comprehensive Plan recognizes that a study of the development along Indiantown Road was being undertaken at the time of Comprehensive Plan adoption and acknowledges that signage, streetscape and site development criteria to enhance the visual aspects of Indiantown Road would be adopted. The Comprehensive Plan does not state that a new zoning district would be created limiting uses from those already available for the underlying zoning. Policy 1.3.5 states that land development regulation[s] shall include four designated types of commercial zoning as specified in this policy. These are Neighborhood Commercial, General Commercial, Office Commercial and Heavy Products Commercial. Specific description of policies and goals for each of these is stated. There is no policy for the recognition of a land use or zoning category specifically applicable to Indiantown Road. The Petitioner is a substantially affected person by virtue of its ownership since 1981 of property within the Maplewood/Center Street District which is part of the IOZ and is the successor developer of a previously approved Development of Regional Impact. Petitioner has expended millions of dollars in improvements to the property within the Maplewood/Center Street District in the IOZ and has contributed substantial acreage for the construction of a public school, park and fire station. The Petitioner is Restigouche, Inc., its address is 102 Nocossa Circle, Jupiter Florida 33458, telephone number (407)744-4778. The Petitioner's representative at that office is Eileen F. Letsch, Vice-President. Petitioner is represented in this matter by its counsel, Paul B. Erickson of Alley, Maass, Rogers & Lindsay, P.A., 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. The relief sought by Restigouche, Inc. is recognition by the Town of Jupiter that such portions of Section 517 which diminish permissible zoning uses from those allowed in the underlying C-2 Zoning District are void and unenforceable allowing the Application for Special Exception to be considered by the Town of Jupiter. The Town did not grant the relief sought by Petitioner. Accordingly, on or about March 5, 1991, Petitioner submitted a petition to the Department of Community Affairs (Department). The body of the petition read as follows: Restigouche, Inc. ("Restigouche") files this challenge to the consistency of a land development regulation of the Town of Jupiter, Florida. Restigouche is not aware of any Agency file number for this proceeding. Restigouche, Inc. is a Florida corporation. This petition is filed by Eileen F. Letsch, Executive Vice-President, 102 Nocossa Circle, Jupiter, Florida 33458, (407)744-4778. Restigouche is represented in this Petition by Paul B. Erickson, Esq. of Alley, Maass, Rogers & Lindsay, 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. Restigouche is the owner of property in the Town of Jupiter, Florida which is within the Indiantown Road Overlay Zoning District ("IOZ") created by the Town under Ordinances 14-90 and 15-90 on March 6, 1990 and applied to Restigouche's property by Ordinance 21-90 on March 20, 1990. These ordinances as enacted create Section 517 of Ordinance 10-88 which is the current zoning ordinance of the Town of Jupiter. Restigouche challenged the consistency of the IOZ with the Comprehensive Plan of the Town of Jupiter by letter to the chief elected official of the Town dated December 12, 1990. A copy of the petition is attached. The Town of Jupiter adopted its Comprehensive Plan January 20, 1990. The IOZ as it was enacted in part by Ordinances 15-90 and 21-90 is a down zoning regulation which reduces the number of permissible uses for Restigouche's property by right or special exception from 41 to 27. The IOZ as enacted in Ordinance 14-90 established landscaping and site development standards for property within the IOZ. The portions of the IOZ as adopted in Ordinances 15-90 and 21-90 are not consistent with the Comprehensive Plan of the Town of Jupiter. The Comprehensive Plan refers to the IOZ as an area of landscaping and site development standards. It does not refer to the IOZ as an area where permissible uses will be down-zoned. The Comprehensive Plan establishes mandatory criteria for the development of commercial uses within the Town in Policy 1.3.5. This does not recognize or allow a separate, restrictive commercial zoning district along Indiantown Road. The IOZ as enacted in Ordinance 15-90 should be declared invalid because it is inconsistent with the Comprehensive Plan. The Department determined that the petition substantially complied with the requirements of Rule 9J-24.007(5) and (6), Florida Administrative Code, and so notified the parties. By letter dated March 22, 1991, the Department requested the Mayor of the Town to furnish it with the following materials: those portions of the Town's land development regulations which discuss or implement the IOZ; the standards for all zoning districts which underlie the IOZ; any supportive studies regarding the IOZ; and those portions of the comprehensive plan which discuss the IOZ or densities and allowable uses in the area in question. The requested materials were furnished on or about March 28, 1991. An informal hearing on Petitioner's challenge to the I.O.Z.'s use restrictions was held in Jupiter on April 12, 1991. Representatives of both Petitioner and the Town participated in the hearing. They presented information and argument for the Department's consideration. Following the informal hearing, the Department gave the parties the opportunity to supplement what they had presented at hearing. Both parties took advantage of the opportunity. In its supplemental submission, Petitioner presented additional written argument, in which it identified with specificity those provisions of the Town of Jupiter Comprehensive Plan with which it claimed the I.O.Z.'s use restrictions were inconsistent. These specifically identified Plan provisions were Goal 1, Objectives 1.2, 1.3 and 1.4, and Policies 1.1.4, 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.13, 1.1.14, 1.2.3, 1.2.4, and 1.3.5 of the future land use element and Policies 1.1.7, 1.1.8 and 1.1.9 of the intergovernmental coordination element. Petitioner also submitted 1) an engineer's report supporting its position that its proposed auto campus "would have significantly less impact upon public facilities" than would a 230,500 square foot retail center constructed on its property, 2) photographs of a model of the proposed auto campus, and 3) site plans of the proposed auto campus. By letter dated April 30, 1991, the Town objected to Petitioner's submission of the engineer's report and asked that it not be considered by the Department because it was generated after the informal hearing and therefore was "not available for discussion . . . at the hearing." On May 10, 1991, following its review and consideration of not only the information, argument and materials with which it had been presented, but of the entire Town of Jupiter Comprehensive Plan as well, which it had on file, the Department issued its written decision finding that "the provisions of the Town of Jupiter Land Development Regulations contained in the IOZ which have been challenged by Petitioners 46/ in this proceeding are consistent with the Town's Comprehensive Plan." The Department explained its determination as follows in Conclusions of Law 2 and 3 of its written decision: The Town of Jupiter's IOZ is not in conflict with the Comprehensive [P]lan because the IOZ is specifically authorized by the Plan, and there are no provisions in the Plan which prohibit the Town from adjusting allowable uses within underlying zoning districts. The uses permitted in the IOZ are certainly within the permissible range of uses for the designation in the plan. The plan does not guarantee a minimal zoning category for properties within the general commercial designation. It only provides that the zoning will effectively include general commercial uses. Further, the IOZ cannot accurately be referred to as a separate zoning category as argued by the Petitioners. The IOZ modifies underlying general commercial zoning districts (which the Petitioners agree are authorized by the Plan). In fact, land development regulations such as the IOZ are considered to be innovative and are encouraged in s. 163.3202(3), F.S. There are no provisions in Chapter 163, F.S., that require comprehensive plans to identify and authorize all implementing land development regulations. Although Policy 1.3.5 lists certain uses which are eliminated or limited within the IOZ, these uses are allowed in commercial zoning districts outside the IOZ. The Petitioners may have cited portions of certain policy statements that, when taken in isolation, seem to suggest potential conflicts with the IOZ. However, the IOZ serves as the implementing solution to a problem area identified in the Plan as being of significant concern. Therefore, the IOZ, on balance, takes action in [the] direction of implementing and furthering substantive portions of the Plan. Further, the lack of recognition in the comprehensive plan of implementing land development regulations does not, by itself, constitute an inconsistency. On May 31, 1991, Petitioner filed a petition with the Division of Administrative Hearings requesting a hearing on its consistency challenge. Petitioner did so in good faith as part of its effort to convince the Town Council that the I.O.Z. should be modified in a manner that would allow Petitioner to construct its proposed auto campus in the Maplewood Drive/Indiantown Road. Petitioner hoped that the Hearing Officer would agree with its position that the I.O.Z.'s use restrictions are inconsistent with the Town of Jupiter Comprehensive Plan and that, after the Hearing Officer found these use restrictions to be inconsistent with the Plan, the Town Council would take action to eliminate them to avoid the sanctions it would face if it did not take such action.
The Issue The issues in this case are whether two City of Palm Bay Comprehensive Plan Amendments, one of which was "small scale development amendment" under Section 163.3187(1)(c), Florida Statutes, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Brevard County (County) is a political subdivision of the State of Florida. See Section 7.05, Florida Statutes. The County is bordered on the north by Volusia County, on the west by Volusia, Orange, and Osceola Counties, on the south by Indian River County, and on the east by the Atlantic Ocean. The City of Palm Bay (City) is a municipality in southeast Brevard County, just to the southwest of the City of Melbourne. In its extreme northeast, the City borders on the Intracoastal Waterway. From there, it fans out to the southeast, surrounded on all sides by the County. The Department of Community Affairs (DCA) is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. The Small-Scale Amendment: Review and Adoption On June 3, 1999, William Wilson submitted an application to amend the City's Future Land Use Map (FLUM) for a 1.1558-acre (small-scale) parcel of land in the unincorporated County at the southeast corner of the intersection of Valkaria Road (an east/west thoroughfare) and Babcock Street (a north/south thoroughfare), in anticipation of annexation by the City. In this vicinity, the unincorporated County lay to the east, across Babcock Street, between the City and the Intracoastal Waterway. The unincorporated County land to the north, east, and south of the parcel had a future land use designation of "Residential" on the County's FLUM; the City land to the west had a residential future land use designation on the City's FLUM. The requested amendment was from the existing County "Residential" designation to City "Commercial." A zoning change also was requested from County AU (Agricultural Residential) to City CC (Community Commercial). The parcel subject to the small-scale amendment request has a single-family home and free-standing residential garage located onsite. Projected impacts from commercial development on the parcel met all relevant City level of service (LOS) standards. (The County has not put environmental suitability at issue with respect to the parcel.) The City planning staff recommended approval of the requested plan amendment; staff recommended approval of the zoning change but to City NC (Neighborhood Commerical). These requests were heard by the City Planning and Zoning Board, sitting as the local planning agency (LPA), on October 20, 1999. The LPA voted to recommend to the City Council that the plan amendment be approved and that the zoning change to City NC also be approved. By Ordinance 2000-08, adopted on March 2, 2000, the City annexed the small-scale parcel, effective immediately upon enactment of the Ordinance. By Ordinance No. 2000-09, also adopted on March 2, 2000, the City Council granted the request to change the future land use designation of the parcel on the City's FLUM to City "Commercial." By Ordinance No. 2000-10, zoning on the parcel was changed to City NC. The Large-Scale Amendment: Review and Adoption On July 6, 1999, Brian West submitted an application to amend the City's FLUM for a 19.57-acre parcel on the northeast corner of the intersection of Valkaria Road and Babcock Street (immediately north of the small-scale parcel, across Valkaria), in anticipation of annexation by the City. The requested amendment was from the existing Brevard County "Residential" designation to City "Commercial" future land use. A zoning change from County AU (Agricultural Residential) to City CC (Community Commercial) also was requested. This 19.57-acre (large-scale) parcel is vacant. The County has not put environmental suitability at issue with respect to the large-scale parcel. The City's planning staff recommended approval of the requested plan amendment, which was heard by the City's Planning and Zoning Board, sitting as the LPA, on October 20, 1999, along with the small-scale request. The LPA voted to recommend to the City Council that the large-scale amendment be denied. On February 15, 2000, the City Council conducted a special meeting to consider the requested large-scale annexation, plan amendment, and zoning change and voted to approve the requests. However, at the time, the City also was in the process of developing plan amendments in response to its Evaluation and Appraisal Report (EAR); as a result, transmittal to DCA was deferred until transmittal of the EAR-based amendments. On January 18, 2001, the City Council met in regular session and voted to transmit the requested large-scale amendment to DCA, along with the other EAR-based amendments. On May 17, 2001, DCA issued its Objections, Recommendations, and Comments (ORC) Report regarding the transmitted comprehensive plan amendments. DCA raised several objections and made comments regarding the amendment. The ORC Report was received by the City on May 21, 2001. (The greater weight of the evidence was contrary to testimony of the City's Planning Manager that the ORC Report received on that date was incomplete.) On October 2, 2001, the City Council adopted Ordinance No. 2001-65, which adopted the requested amendment for the large-scale parcel from County Residential to City Commercial future land use. The EAR-based amendments also were adopted on the same date by Ordinance 2001-66. By Ordinance 2001-86 adopted on November 1, 2001, the City annexed the large-scale parcel, effective immediately. Re-Adoption of Plan Amendments at Issue At some unspecified time after October 2, 2001, the City became aware of concerns voiced by DCA regarding the sequence and timing of the large-scale annexation and FLUM amendment. To address these concerns, the City adopted Ordinance No. 2001-105 on December 20, 2001. This Ordinance repealed and re-adopted Ordinance No. 2000-65. At some unspecified time after March 2, 2000, the City became aware of concerns raised by DCA that adoption of the small- scale FLUM amendment took place before the City adopted plan amendments to comply with new school siting requirements, contrary to a statutory prohibition. In order to address these concerns, the City adopted Ordinance No. 2000-79 on January 4, 2001, to repeal and re-adopt Ordinance No. 2000-09, re-designating the small-scale parcel for "Commercial" future land use. DCA Notice of Intent and City's EAR-Based Amendments On January 21, 2002, DCA published a Notice of Intent to find the readopted large-scale amendment "in compliance." DCA subsequently caused to be published a Notice of Intent to find this readopted amendment "in compliance." The EAR-based amendments adopted on October 2, 2001, included certain text amendments, but these amendments had no direct bearing on the plan amendments at issue in this case. All plan text provisions relating to the plan amendments at issue in this case remained "substantially the same" after the EAR-based amendments. Need for Additional Commercial Future Land Use and Internal Consistency The County contends that analysis of the data in existence at the time of adoption of the plan amendments at issue in this case does not support a need to change the future land use on these parcels from County Agricultural Residential to City Commercial. But the following Findings are based on these data and analysis. City data and analysis dated January 2001 indicated in pertinent part: In 2011 the City will need 719 acres of commercial land and at buildout, will need approximately 1,725 acres. The Future Land Use Map currently allocated approximately 1,612 acres for commercial and office development. This is slightly below the needs identified over the long term time periods. The expansion of existing Activity Centers and the development of new Activity Centers should easily accommodate this minor increase. Between now and the next required Plan update in 2007, the City should analyze the available commercial land to determine if existing designated lands are appropriately located or whether new areas should be established and existing designations converted to other land use types. Of particular interest in that regard would be the large amount of neighborhood commercial presently designated but which is primarily vacant. It was not clear from the evidence how the acreage figures in the data and analysis were calculated. It does not appear from the evidence that the figure for commercial acreage "needed" included any "cushion" or "margin of error." If the City has more land allocated for commercial future land use than is expected to be "needed" within the planning horizon of its Comprehensive Plan (the year 2011), it may be the result of pre-platting of the City by General Development Corporation. If so, the City also has an even greater excess of acreage allocated for residential future land use since approximately 90 percent of the City was pre-platted for small, quarter-acre residential lots. As a result of pre-platting, it now appears that, at build-out (expected in about 20-30 years), the City will have an excess of allocated for residential land use and a shortage of acreage allocated for commercial land use (among other non-residential uses.) As a result, there is a current need to begin to reduce the amount of acreage allocated for residential future land use and add commercial acreage (as well as other non-residential uses.) A disproportion of City land allocated to commercial future land use is in the northern part of the City, between Malabar Road and Palm Bay Road, a considerable distance from the intersection of Babcock Street and Valkaria Road. Before the plan amendments at issue in this case, there was hardly any commercial future land use in the City in the vicinity of the Babcock/Valkaria intersection. Almost all of what little commercial future land use could be found in the vicinity was in small parcels--the single exception being a 15-acre parcel at the intersection of Eldron and Grant approximately two miles to the south. There also was very little land allocated to commercial future land uses in the unincorporated County anywhere near the Babcock/Valkaria intersection. Almost all of the unincorporated County in the vicinity had Rural Residential future land use. There was some County Neighborhood Commercial across Babcock from the 15- acre parcel of City Commercial two miles to the south of the intersection. There also was some County Neighborhood Commercial and a small amount of County Community Commercial future land use east of Babcock about a mile to the north of the intersection. A 40-acre parcel approximately 650 feet to the east of the intersection was changed from County rural residential to general commercial zoning in 1988. But at around the time the City began to process the plan amendments at issue in this case, the County purchased the land and re-designated it for Public future land use and GML (Government-Managed Land) zoning. Most of the City's population growth in the last 20 years has been in the southern and western part of the City, to the west of the Babcock/Valkaria intersection. Between 1986 and 1999, residential development within 2-3 miles of the amendment sites increased approximately 160 percent. As a result, whereas 17 years ago most of the City's population was east of Interstate 95, now approximately half the population resides west of Interstate 95 (although 60 percent still resides north of Malabar Road.) Due to the sparse commercial use in the vicinity, either in the City or the unincorporated County, there is a need for more land designated for commercial future land uses in the southern part of the City to serve the rapidly growing population in that area. The applicant for the large-scale amendment submitted a letter projecting a need for 1.5 million square feet of retail space in the City based on a comparison of "current space" with average retail space per capita in Florida. The County criticized the professional acceptability of this submission as data and analysis to demonstrate need for additional commercial acreage in the City. Standing alone, the submission may be fairly subject to the County's criticism; but considered along with the other data and analysis, the submission adds to the demonstration of need for the plan amendments. It was estimated that commercial uses at the intersection of Babcock and Valkaria will generate an additional 12,000 vehicle trips on Babcock in the vicinity of its intersection with Valkaria. This estimate further demonstrates a need for additional commercial future land use in the vicinity. At least some of the vehicle trips expected to be generated in the vicinity of the Babcock/Valkaria intersection as a result of adding commercial future land use there would correspond to a reduction in vehicular traffic from the southern part of the City to and from commercial areas in the northern part of the City. For that reason, by helping balance the amount of commercial land use available in the northern and southern parts of the City, adding commercial future land use in the southern part of the City could be reasonably expected to reduce traffic overall. Commercial land uses generally generate higher tax revenue and demand fewer government services than residential land uses. Meanwhile, the City provides most of the government services in the Babcock/Valkaria vicinity and has a backlog of infrastructure projects. For that reason, an economic benefit reasonably is expected to accrue to the City from adding commercial in the southern part of the City.2 Future Land Use Element FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon area need. . . ." FLU Policy 3.1A states: "The acreage of commercial land permitted by the Future Land Use Map shall not exceed projected needs." The County did not prove that the proposed FLUM amendments are inconsistent with either this Objective or this Policy. The plan amendments at issue are based upon area need and do not exceed projected needs, as reflected in the data and analysis. Compatibility and Internal Consistency The County contended that City Commercial future land use for the amendment parcels is incompatible with surrounding land uses and internally inconsistent with provisions the City's FLU Objective 2.3, to: "Prevent incompatible land uses from locating in residential areas in order to promote neighborhood stability and prevent deterioration." In the unincorporated County to the east of Babcock Street, there are primarily large-lot, rural residential land uses with some agricultural uses such as horses and tree-farming. But, as indicated, there are platted residential lots in the City to the west of Babcock Street that are urban (or suburban) in character. During the course of these proceedings, the County abandoned its contentions as to incompatibility of the small-scale amendment except for the existence of a residential structure on the property. In arguing that the existence of the residential structure on the property makes commercial future land use incompatible, the County relied on the City's zoning LDRs. But zoning and consistency of zoning with the requirements of zoning LDRs are not at issue in this comprehensive plan amendment case. See Conclusion 52, infra. Even if zoning and consistency with zoning LDRs were at issue, the applicant's residential structure would not defeat the applicant's proposed future land use change; rather, granting the application would mean that use of the residential structure would have to be discontinued after the future land use change. As to the large-scale amendment, the County also relies in part on alleged inconsistency with an LDR--in this instance, the City's LDR for Community Commercial zoning that these areas are "to be primarily located in or near the intersection of arterial roadways." But, again, zoning and consistency of zoning with the requirements of zoning LDRs are not issues for determination in this comprehensive plan amendment case. Id. Even if zoning and consistency of zoning with the requirements of zoning LDRs were at issue, consistency and compatibility still would be fairly debatable. The evidence was that Valkaria was designated as a collector road at the time of adoption of the proposed large-scale amendment and that Babcock was designated as an arterial roadway to the north of Valkaria and as a collector to the south of Valkaria. The City characterized Babcock as a minor arterial. By its terms, the LDR in question does not prohibit Community Commercial zoning except in or near the intersection of arterial roadways; it only provides that these areas are to be located primarily in or near these intersections. Even if City Community Commercial zoning were clearly inconsistent with the City's LDR for Community Commercial zoning, City Neighborhood Commercial zoning has no similar provision for location vis-a-vis arterial roads. Since the City only has one commercial future land use category, City Commercial would be the appropriate City future land use designation for City Neighborhood Commercial zoning. The County's contentions as to the large-scale amendment also are seriously undermined by the existence of both County Community Commercial and County Neighborhood Commercial future land use east of Babcock. In addition, a County-sponsored Small Area Study (SAS) of approximately 11,500 acres of land east of the intersection along Valkaria Road recommended County Neighborhood Commercial future land use for the northeast and southeast corners of the intersection of Babcock and Valkaria (as well as County Restricted Neighborhood Commercial zoning). As indicated, the City's Comprehensive Plan does not distinguish between the two categories of commercial future land use and, if any commercial future land use is compatible with surrounding land uses, City Commercial future land use is appropriate. Contrary to the County's argument, it makes no difference to the appropriateness of City Commercial future land use that County Neighborhood Commercial future land is more limited than City Commercial future land use (or that County Restricted Neighborhood Commercial zoning is more limited than City Community Commercial zoning). The County argued that the large-scale future land use amendment was inconsistent with City FLUE Policy 2.3A, which states that LDRs must "continue to contain provisions to ensure that land uses surrounded by and/or abutting residential areas are not in conflict with the scale, intensity, density and character of the residential area." There is nothing about the proposed FLUM changes that is inconsistent with this Policy. Consistency of LDRs with this Policy is not at issue in this proceeding. See Conclusion 53, infra. The County also questioned the adequacy of buffer between commercial uses on the large-scale parcel and nearby residential uses. Precise questions as to the adequacy of buffer are decided under the LDRs, during site development review and permitting. However, it is noted that there is a 50-foot wide "paper street" (i.e., a platted right-of-way that never was developed as a street) to the west of the large-scale parcel. In addition, zoning as City Community Commercial was conditioned upon additional buffer to the east (25 feet wide) and to the north (50 feet wide). Consideration also is being given to a Habitat Conservation Plan of an undetermined size in the northern portion of the site for use as a "fly-over" for scrub jays. In addition, actual use of the residential land in the unincorporated County to the north of the large-scale parcel includes a car repair business with garage and approximately 15 cars in various states of disrepair.3 For all of the foregoing reasons, the evidence did not establish either internal inconsistency or incompatibility of commercial uses on the large-scale parcel with existing residential uses. Infrastructure and Internal Consistency At the time of adoption of the plan amendments at issue, central water and sewer services had not yet been extended to the two parcels. However, it was clear from the evidence that adequate central water and sewer capacity existed to accommodate commercial development on these parcels and that central water and sewer was being extended to the parcels. The Capital Improvements Element of the City's Comprehensive Plan listed $1.7 million being budgeted for water and sewer improvements in fiscal year 2001/2002, and in excess of $15.3 million budgeted in fiscal year 2002/2003. FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon . . . the availability of supporting infrastructure." The County did not prove that the proposed plan amendments are inconsistent with this Objective. Urban Sprawl and Internal Consistency The County maintains that the proposed plan amendments exacerbate urban sprawl. But the County provided no detailed analysis of the indicators of urban sprawl in Rule 9J-5, Florida Administrative Code, to support its contention. In arguing urban sprawl, the County relied on its contentions that there was no demonstrated need to convert County rural residential land use to City commercial land use. This argument has been rejected. See Findings 20-31, supra. The County's urban sprawl argument also focused on uses in the unincorporated County east of Babcock and characterizes the plan amendments as placing commercial land use in a rural area. This focus and characterization ignores the existence of urban residential uses in the City west of Babcock. Seen in proper perspective, the proposed plan amendments allow commercial land use that would tend to mitigate and discourage the kind of urban sprawl promoted by the pre-platting of the City. Instead of having to travel to access commercial uses in distant parts of the City, City residents in the vicinity would have a much closer option under the proposed amendments (as would County residents in the vicinity). FLU Objective 1.4 in the City's Comprehensive Plan is to: "Establish a Growth Management Area to control urban sprawl." FLU Policy 1.4B states: "City funds shall not be utilized to expand public facilities and services for future growth outside of the established Growth Management Area." The small-scale parcel was outside the established Growth Management Area (GMA) at the time of adoption of the small-scale amendment. But it does not follow that the small-scale amendment constitutes urban sprawl. Nor does it follow that the small-scale amendment is inconsistent with either the Objective or the Policy. The small-scale amendment can be made a GMA before any City funds are used to expand public facilities and services for future commercial use of the small-scale parcel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding both the small-scale amendment and the large- scale amendment of the City of Palm Bay (adopted by Ordinance 2000- 79 and by Ordinance 2001-105, respectively) "in compliance." DONE AND ENTERED this 16th day of December, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2002.
The Issue The issue to be determined in this proceeding is whether a small scale development amendment to the future land use map of the City of Jacksonville's 2030 Comprehensive Plan, adopted by Ordinance No. 2019-750-E on February 25, 2020 (the Ordinance), is "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and Standing Petitioner Livingston is a Florida resident, who lives at 1507 Alexandria Place North, Jacksonville, Florida 32207. Livingston appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Livingston is an affected person under section 163.3184(1)(a). Petitioner Gopal is a Florida resident, who lives at 1535 Alexandria Place North, Jacksonville, Florida 32207. Gopal appeared at the adoption hearings for the Ordinance, and submitted comments and objections on the record. Gopal is an affected person under section 163.3184(1)(a). Right Size is a Florida not-for-profit corporation that conducts business in the City, and its corporate address is 1507 Alexandria Place North, Jacksonville, Florida 32207. The specific purpose of Right Size, as stated in its Articles of Incorporation filed February 11, 2020, is to support, protect and preserve the historic character and beauty of San Marco, a historic residential neighborhood south of downtown Jacksonville and the St. Johns River. Officers of Right Size appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Right Size is an affected person under section 163.3184(1)(a). Respondent City is a municipal corporation of the state of Florida and is responsible for enacting and amending its comprehensive plan in accordance with Florida law. The City provided timely notice to the parties and the process followed the provisions of the City's Ordinance Code and part II of chapter 163. The Ordinance relates to 2.87 acres of property located at 2137 Hendricks Avenue and 2139 Thacker Avenue (Property). The Property is located within the City's jurisdiction. Intervenor Harbert is an Alabama limited liability company, registered to do business in Florida. Harbert is an applicant of record for the small scale development amendment and currently has the Property under a purchase contract pending the effective adoption of the Ordinance. Harbert is an affected person and intervenor under section 163.3187(5)(a). Intervenor South Jax is a Florida not-for-profit corporation and is the owner of record of the Property that is the subject of the Ordinance. South Jax is also an applicant of record for the small scale development amendment. South Jax is an affected person under section 163.3184(1)(a). The Property and Surrounding Parcels The Property occupies the majority of one block in the San Marco neighborhood of the City. It is bounded on the north by Alford Place, on the east by Mango Place, on the south by Mitchell Avenue, and on the west by Hendricks Avenue (State Road 13). Hendricks Avenue is classified as an arterial road. The Property is currently home to The South Jacksonville Presbyterian Church. The southern portion of the Property, comprising 1.89 acres, is currently designated Residential Professional Institutional (RPI) on the City's Future Land Use Map series (FLUM) of the Future Land Use Element (FLUE) in the 2030 Comprehensive Plan (Comp Plan). The northern portion of the Property, comprising 0.98 acres, is currently designated Community/General Commercial (CGC) on the FLUM. The southern portion of the Property is currently zoned Commercial Residential Office (CRO) on the City's zoning map. The northern portion of the Property is zoned Commercial Community/General-1 (CCG-1) on the City's zoning map. The FLUM shows that the Property is currently in the City's Urban Development Area (UDA), and abuts the boundary line of the City's Urban Priority Development Area (UPDA) to the north. The parcel to the north of the Property was the subject of a small scale FLUM amendment in 2014 (Ordinance 2014-130-E). It is known as East San Marco, currently has a Comp Plan FLUM designation of CGC, and is in the UPDA that permits development of up to 60 residential units per acre (ru/acre). Ordinance 2014-130-E for East San Marco included a FLUE text change, i.e., a site specific policy/text change under section 163.3187(1)(b). FLUE Policy 3.1.26 exempts East San Marco from specified UPDA characteristics. The East San Marco property was recently rezoned from Planned Unit Development (PUD) to PUD (Ordinance 2019-799-E) for a mixed-use project known as the East San Marco development. The PUD provides that the maximum height for commercial buildings is 50 feet not including non- habitable space, and 48 feet for multifamily units. Located south of the Property across Mitchell Avenue are parcels developed for single family residential use and currently designated as Low Density Residential (LDR) on the FLUM. These properties are zoned Residential Low Density-60 (RLD-60) on the City's zoning map. Located east of the Property across Mango Place are parcels developed with a mix of single family residential and office uses and designated as a mix of CGC and RPI on the FLUM. These properties have a mix of zoning including CCG-1, Residential Medium Density-A (RMD-A), and Commercial Office (CO). Located west of the Property at Hendricks Avenue/San Marco Boulevard are parcels developed with multifamily, restaurant and retail commercial uses and designated as a mix of Medium Density Residential (MDR) and CGC on the FLUM. These properties are zoned RMD-D and CCG-1. Intervenors intend to develop the Property with a mixed-use project that will include 133 multifamily residential units and a parking garage. The existing church sanctuary will remain in use at the northeast corner of Hendricks Avenue and Mitchell Avenue. The Ordinance On August 27, 2019, Intervenors applied for a small scale development amendment proposing to change the Property from RPI and CGC to CGC, and to extend the UPDA to include the Property. On the same date, Intervenors also filed a companion rezoning application seeking to change the zoning on the Property from CRO and CCG-1 to PUD. The rezoning application was processed concurrent with the small scale development amendment application. The City's professional planning staff collected and reviewed data and information related to the small scale development amendment application, the Property, and the surrounding areas. The staff also conducted a site visit. The staff further sought review by, and received input from, a number of different City and state agencies and organizations regarding the proposed Ordinance. On October 28, 2019, the City held a citizens' information meeting to discuss the proposed Ordinance. The meeting was attended by approximately nine residents. After reviewing and analyzing the data and information gathered, City professional planning staff determined that the Ordinance was consistent with the Comp Plan and furthers the goals, policies, and objectives of the Comp Plan. The determination was memorialized in a staff report recommending approval of the Ordinance. The staff report was prepared for consideration by the City's Planning Commission prior to its regular meeting on January 23, 2020. At its January 23, 2020, meeting, the Planning Commission held an approximately two and one-half hour hearing on both the Ordinance and the PUD. At the conclusion of the hearing, the Planning Commission recommended approval of the Ordinance by a unanimous vote. The staff report and the Planning Commission's recommendation were forwarded to the City Council's Land Use and Zoning (LUZ) Committee. The LUZ Committee held public hearings addressing the Ordinance on December 3, 2019; January 22, 2020; February 4, 2020; and February 19, 2020. Certain concerns were raised by citizens at public hearings both before and during the February 19, 2020, LUZ Committee meeting. In response, the LUZ Committee requested that Mr. Killingsworth draft a site specific policy/text amendment to adopt limitations on the number of residential units, the non-residential floor area permitted on the Property, and the maximum height of structures on the Property, with measurable criteria for determining the height of structures within the proposed use on the Property. During the February 19, 2020, public hearing, the LUZ Committee recommended addition of FLUE Policy 4.4.16, a site specific policy/text amendment, which states: Multi-family residential uses shall be limited to 133 units. Non-residential floor area shall be limited to 96,000 square feet (garage, all floors) and 25,000 +/- square feet (existing church, all floors). To ensure compatibility with adjacent uses and to protect neighborhood scale and character through transition zones, bulk, massing, and height restrictions, new building height shall be limited to the calculated weighted average, not to exceed 35 feet, across the length of the development from Alford Place to Mitchell Avenue as follows: A sum of the height to the predominant roof line (ridge or parapet wall) of that portion of a building multiplied by the length of that portion of a building divided by the overall length of that portion of a building divided by the overall length of permissible building within the minimum setback. After approximately six hours of testimony and discussion, the LUZ Committee unanimously recommended approval of the Ordinance with the site specific policy/text amendment. The City Council held public hearings to address the Ordinance on November 26, 2019; December 10, 2019; January 28, 2020; February 11, 2020; and February 25, 2020. After approximately five and a half hours of testimony and discussion, the City Council adopted the Ordinance on February 25, 2020, by a vote of 17 to one. There was significant citizen input regarding the Ordinance throughout the hearing process. This included emails and letters to City staff, to Planning Commissioners and City Council members, and submittal of verbal and written comments at the hearings. Petitioners' and Right Size's Objections Following their filing of the Petition and other stipulations mentioned above, Petitioners and Right Size jointly presented their case during the final hearing. They argued that the Ordinance was not "in compliance" because: (i) it created internal inconsistencies based upon Comp Plan Policies 1.1.20A, 1.1.20B, 1.1.21 and 1.1.22; (ii) it was not based on relevant and appropriate data and an analysis by the City; (iii) it did not react to data in an appropriate way and to the extent necessary indicated by the data available at the time of the adoption of the Ordinance; and (iv) subsection (c) of FLUE Policy 4.4.16 related to height failed to establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and land use regulations. Each argument is generally addressed below. However, the primary underlying premise of Petitioners' and Right Size's challenge was that the Ordinance would allow a density in excess of 40 ru/acre and permit a height in excess of 35 feet. Internal Consistency In the Amended Joint Pre-hearing Stipulation, as modified by the Notice of Narrowing Issues for Hearing, Petitioners and Right Size identified specific policies in the Comp Plan, which they assert rendered the Ordinance inconsistent with the Comp Plan. FLUE Policy 1.1.20A states that "[e]xtensions of the Development Areas will be noted in each land use amendment where an extension is needed or requested concurrent with a Future Land Use Map Amendment. In addition, plan amendments shall meet the requirements as set forth in Policy 1.1.21 and 1.1.22." The definitional section of the FLUE explains that the City is divided into five tiers of Development Areas which include the UPDA and the UDA. These areas are depicted on the City's FLUM series and control "the density, development characteristics, and other variables within plan categories." The first sentence of Policy 1.1.20A affords applicants the ability to request an extension of a development area concurrent with a land use amendment application. Consistent with the policy, the small scale development amendment application included a request for an extension of the UPDA. The request was submitted concurrent with the request to designate the Property as CGC on the FLUM. The adopted Ordinance makes note of the extension of the UPDA as required by Policy 1.1.20A. The second sentence of Policy 1.1.20A requires that when an amendment application includes a request to extend a development area, the City must ensure consistency with Policies 1.1.21 and 1.1.22. The City's analysis is reflected in the staff report, which finds that the amendment application meets Policies 1.1.20, 1.1.20A, and 1.1.20B. Petitioners and Right Size did not offer any testimony regarding consistency with Policy 1.1.20A. Their expert, Mr. Atkins, testified that he was familiar with Policy 1.1.20A, but did not explain how or why the Ordinance was internally inconsistent with Policy 1.1.20A. Instead, Mr. Atkins testified about data and analysis regarding Policy 1.1.21. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was inconsistent with Policy 1.1.20A. FLUE Policy 1.1.20B states: Expansion of the Development Areas shall result in development that would be compatible with its surroundings. When considering land areas to add to the Development Areas, after demonstrating that a need exists in accordance with Policy 1.1.21, inclusion of the following areas is discouraged; Preservation Project Lands Conservation Lands Agricultural Lands, except when development proposals include Master Planned Communities or developments within the Multi-Use Future Land Use Category, as defined in this element. The following areas are deemed generally appropriate for inclusion in Development Areas subject to conformance with Policy 1.1.21: Land contiguous with the Development Area and which would be a logical extension of an existing urban scale and/or has a functional relationship to development within the Development Area. Locations within one mile of a planned node with urban development characteristics. Locations within one-half mile of the existing or planned JTA RTS. Locations having projected surplus service capacity where necessary facilities and services can be readily extended. Public water and sewer service exists within one-half mile of the site. Large Scale Multi-Use developments and Master Planned Communities which are designed to provide for the internal capture of daily trips for work, shopping and recreational activities. Low density residential development at locations up to three miles from the inward boundary of the preservation project lands. Inward is measured from that part of the preservation project lands closest to the existing Suburban Area such that the preservation lands serves to separate suburban from rural. The development shall be a logical extension of residential growth, which furthers the intent of the Preservation Project to provide passive recreation and low intensity land use buffers around protected areas. Such sites should be located within one- half mile of existing water and sewer, or within JEA plans for expansion. After the City makes a determination that there is a need for the expansion of a Development Area pursuant to Policy 1.1.21, the City next looks to see if the property is discouraged under Policy 1.1.20B. The subject Property does not fall into one of the discouraged lands. The City's expert, Ms. Reed, explained that if the questions of need and discouraged lands are satisfactorily answered, the Policy then describes lands that are generally deemed appropriate for inclusion in a particular Development Area. The first question is whether the Property is contiguous to the UPDA and whether the extension is logical. The staff report notes that the Property is immediately adjacent to the UPDA to the north and that an extension of the boundary is logical because it permits an infill project. Ms. Reed and Ms. Haga testified that the proposed extension of the UPDA to include the Property is also logical because there is a functional relationship to the proposed mixed-use development to the north. The next question is whether the Property is within one mile of a planned node with urban development characteristics. Petitioners and Right Size stipulated that the Property is within a node which was confirmed by Mr. Atkins. The next criterion under Policy 1.1.20B is whether there are mass transit services available near the Property. The staff report notes that mass transit Routes 8 and 25 are available at the Property and this fact was confirmed by Ms. Reed. The fourth and fifth criteria under Policy 1.1.20B address whether there is sufficient water, sewer and other services available to serve the Property. The City requested information from various agencies and utilized the responses to analyze the impact of the Ordinance. The City sought confirmation from the Jacksonville Electric Authority, Transportation Planning, the Duval County School Board, Florida Department of Transportation, and the Concurrency and Mobility Management System Office to determine whether the systems serving the Property, i.e. water, sewer, schools, and roads, had available capacity to serve the site if the UPDA was expanded to include the Property. All the agencies consulted responded that there was sufficient capacity available. In addition, Ms. Reed testified that the Ordinance met Policy 1.1.20B because there is capacity for water and sewer, there is transit available, the area is very walkable, and there is access to a lot of neighborhood services nearby. Ms. Reed and Ms. Haga persuasively testified that the Ordinance met the criteria for land deemed appropriate for inclusion in the UPDA as set forth in Policy 1.1.20B. Petitioners and Right Size did not offer any evidence regarding the consistency of the Ordinance with Policy 1.1.20B and their expert did not offer any opinions or otherwise discuss consistency of the Ordinance with Policy 1.1.20B. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.20B. FLUE Policy 1.1.21 requires the City to analyze need for all land use map amendments. The Policy states: Future amendments to the Future Land Use Map series (FLUMs) shall include consideration of their potential to further the goal of meeting or exceeding the amount of land required to accommodate anticipated growth and the projected population of the area and to allow for the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business consistent with FLUE Policy 1.1.5. The projected growth needs and population projections must be based on relevant and appropriate data which is collected pursuant to a professionally acceptable methodology. In considering the growth needs and the allocation of land, the City shall also evaluate land use need based on the characteristics and land development pattern of localized areas. Land use need identifiers include but may not be limited to, proximity to compatible uses, development scale, site limitations, and the likelihood of furthering growth management and mobility goals. Petitioners and Right Size stipulated that they did not object to a density on the Property of 40 ru/acre or 114 total units, but object to the additional 19 units permitted by the Ordinance. Petitioners' and Right Size's expert, Mr. Atkins, testified that need to expand the UPDA to encompass the Property was not demonstrated, and that need for the "additional number of units" was not demonstrated. The City's experts, Ms. Reed and Mr. Killingsworth explained that Table L-20 of the FLUE identifies land use categories and their projected need at the end of the 2030 planning horizon. Mr. Killingsworth testified that Table L-20 demonstrates that at the end of the planning horizon the RPI land use will be at 119 percent of need, while the CGC land use will be at 84 percent of need. This indicates a need for additional CGC designated lands by 2030, as well as an over-abundance of RPI-designated lands. Since the Ordinance includes a request to change existing RPI-designated lands to CGC, it addresses both the need to increase CGC-designated lands and to decrease RPI-designated lands. Mr. Killingsworth testified that Table L-20 was prepared by the City to comply with section 163.3177(6), which requires all local governments to project need and to assure that there is market availability to respond to such need. The Table, along with the underlying data and analysis used to support it, was reviewed by the Florida Department of Community Affairs (n/k/a the Department of Economic Opportunity) and found to comply with state law. Mr. Killingsworth also testified that the City considered testimony by the San Marco Merchants Association, local residents, and the applicant presented during the hearings. The testimony demonstrates that the Ordinance would address current economic and housing needs in the area. Mr. Killingsworth opined that the testimony and Table L-20 demonstrate a need for the Ordinance to accommodate anticipated growth and the projected population of the area. With regard to the land use need identifiers of proximity, compatibility, and scale, Mr. Killingsworth testified that "compatibility" as defined in the FLUE "doesn't mean you have to have the same uses adjacent to each other, it doesn’t mean that you have to have the same density adjacent to each other." Instead it means that "those uses have to operate in conjunction with each other and there has to be [ ] some sense to the scale, the mass, and bulk of the structure." See Tr. at pg. 203, lines 11-17. Mr. Killingsworth also testified that although the City's analysis was that the Ordinance met the land use need identifiers, the limitations included in the site specific policy/text amendment were an additional way to ensure compatibility with adjacent uses with regard to use, scale, and height. The CGC portion of the Property is currently permitted to be developed up to 40 ru/acre. The site specific policy/text amendment limits the Property to a total of 133 residential units (or approximately 46 ru/acre), which the City Council determined is compatible, particularly given the fact that the East San Marco property directly north of the Property can be developed with up to 60 ru/acre. The Comp Plan FLUE does not establish height limitations for any of the land use categories, including CGC and RPI. Mr. Killingsworth testified that the s ite specific policy/text amendment provides for standards related to height that are otherwise not in the FLUE. The East San Marco project to the north has a height limit of 50 feet, and the low density residential neighborhood to the south has a height limit of 35 feet. Mr. Killingsworth opined that the limitation in the site specific policy/text amendment, restricting the height on the Property to an average of 35 feet, allows for an appropriate transition between the uses to the north and the uses to the south, thus ensuring compatibility. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.21. FLUE Policy 1.1.22 states: "Future development orders, development permits and plan amendments shall maintain compact and compatible land use patterns, maintain an increasingly efficient urban service delivery system and discourage urban sprawl as described in the Development Areas and the Plan Category Descriptions of the Operative Provisions." Petitioners' and Right Size's expert Mr. Atkins testified that he did not review Policy 1.1.22. However, in an abundance of caution, the City and Intervenors presented evidence to establish that the Ordinance was consistent with Policy 1.1.22. Mr. Killingsworth pointed to the definition of compact development from the FLUE, which includes the efficient use of land primarily by increasing intensity, density, and reducing surface parking. He testified that the Ordinance accomplished these criteria. Mr. Killingsworth testified that the height averaging in the site specific policy/text amendment assisted with ensuring compatibility, and that the proposed development's mix of commercial, residential, and institutional uses on a small site met the definition of compact development. Ms. Reed testified that the Property is in an area with full urban services, has access to transit, and fronts on an arterial roadway. Furthermore, it promotes a compact and compatible land use pattern through redevelopment and infill. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.22. Data and Analysis The parties agreed in the Amended Joint Pre-Hearing Stipulation that the facts remaining for adjudication with regard to "data and analysis" were exclusively related to subsection (c) of Policy 4.4.16, the site specific policy/text amendment that addressed only building height. However, Petitioners' and Right Size's expert Mr. Atkins did not discuss data and analysis specifically related to subsection (c) of Policy 4.4.16. Mr. Atkins testified about data and analysis related to the Ordinance generally. The City addressed the data and analysis supporting the Ordinance, and the City's response to that data and analysis. The City considered data from professionally accepted sources and applied an analysis based on established procedures set forth in the Comp Plan. The process of data collection began with the submittal of the application, which included a survey, a legal description and an owner's affidavit. Mr. Killingsworth testified that chapter 640 of the City's Ordinance Code sets out the process by which FLUM amendment applications are processed and reviewed by the planning staff. Section 650.404(b) requires that the City hold a Citizens Information Meeting that allows receipt of additional data from the affected community. Ms. Reed explained that all amendments are evaluated based upon standards and methodologies established in the FLUE for the assessment of data and analysis, which includes public facilities, school impacts, population, and development impacts. The City planning staff collected background data for the initial analysis of the Ordinance. The background section of the staff report goes through an analysis of the characteristics of the site, including the location, acreage, and surrounding uses; describes the site in general; identifies the Council district; identifies the Planning District; and notes if there are any applicable vision plans. The City planning staff also did research on applications and amendments that have occurred in proximity to the Property. The background information is part of the data and analysis that the City used to determine whether the Ordinance Amendment was consistent with the City's policies. In addition, FLUE Policy 1.2.16 requires the City to assume maximum development potential when analyzing the impacts of amendments to the FLUM unless there is a site-specific policy limiting density or intensity. In this instance, the staff report was completed prior to the addition of the site specific policy/text amendment to the Ordinance, which specifically limits the density and intensity permitted on the Property. The City's staff followed the guidelines of Policy 1.2.16 and utilized the maximum development potential for the Property in reviewing the application, i.e., 2.87 acres of CGC designated property in the UPDA. Ms. Reed testified that the site specific policy/text amendment "added parameters and limitations that were not there before, so it really lessened the impact based on what we analyzed versus what was ultimately approved." See Tr. at pg. 291, lines 8-17. Under Policy 1.2.16, the City developed a table entitled "Development Standards for Impact Assessment," which is used to collect and analyze specific impact data. The data gathered by the City for the table included the analyses provided by various advising agencies and entities. The data and analyses provided by the other agencies and entities are summarized in the table in the staff report. The table also includes a section where the City staff identifies and reviews other appropriate plans and studies. These plans and studies have not been adopted into the City's Comp Plan, but they are utilized as data and analysis when the planning staff reviews a FLUM amendment. The staff report identifies three plans applicable to the site, the Southeast Jacksonville Vision Plan, the North San Marco Action Plan, and the Strategic Regional Policy Plan. Ms. Reed explained that the Ordinance was consistent with the Southeast Jacksonville Vision Plan which provides for new development along Hendricks Avenue compatible with existing neighborhoods. The staff report notes that design details can be addressed in the companion PUD rezoning application. Likewise, the staff report concludes that the Ordinance is generally consistent with the features of the North San Marco Action Plan and that design details would be handled through the PUD review and implementation. Finally, Ms. Reed explained that the City found that the Ordinance would achieve the Strategic Regional Policy Plan's goals of improving quality-of-life with appropriate infill and redevelopment and by providing diverse housing options. Additional evidence and testimony offered by the applicant and the citizens during the Planning Commission, LUZ Committee, and City Council hearings was collected and analyzed by the City prior to final action on the amendment application. The additional data and information gathered during the many different hearings on the Ordinance resulted in the recommendation of the LUZ Committee to add the site specific policy/text amendment to the Ordinance. The site specific policy/text amendment limits the development potential on the Property. Mr. Killingsworth testified that the site specific policy/text amendment was a direct result of the City's analysis of input from the public related to intensity, density, and compatibility. Ms. Reed testified that "all of these things were considered together as a whole in order to come up with a recommendation, both in the staff report and final approval by Council as amended." Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not supported by data and analysis, and that the City's response to that data and analysis was not appropriate. Meaningful and Predictable Standards Section 163.3177(1) requires that a Comp Plan "establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations." Petitioners' and Right Size's expert, Mr. Atkins, opined that subsection (c) of the site specific policy/text amendment is "vague in its application and certainty in its outcome," in that "[t]here is no defined limit of what the height might be in violation of the requirements of section 163.3177(1)." Mr. Atkins acknowledged that the Comp Plan FLUE does not otherwise address height and that "[i]t all seems to be handled at the PUD or LDR level." This fact was confirmed by the City's expert, Mr. Killingsworth. Mr. Killingsworth explained that the objective of the site specific policy/text amendment, as a whole, is to establish a maximum development potential or otherwise restrict development on the Property consistent with Objective 4.4 of the FLUE. The density limitations, combined with the height limitation, restrict the development potential on the Property. Mr. Killingsworth testified that subsection (c) represents a policy statement by the City Council that height should be no more than an average of 35 feet, and it provides guidance as to how the height is to be calculated, which will ultimately be implemented in the LDRs and the PUD. Subsection (c) provides more specificity regarding height than would otherwise be achieved through a Comp Plan land use category without a site specific policy/text amendment. Mr. Killingsworth also testified that although the height limitation in subsection (c) may not dictate that the higher heights should be on the northern portion of the Property and transition to the lower heights on the southern portion of the Property, the PUD and the development of the Property will need to comply with other parts of the Comp Plan that require a transition between uses. Petitioners and Right Size did not prove beyond fair debate that the Ordinance does not guide future development decisions in a consistent manner, and does not establish meaningful and predictable standards for the use and development of land. Ultimate Findings Petitioners and Right Size 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's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order finding Ordinance No. 2019-750-E "in compliance," as defined by section 163.3184(1)(b). DONE AND ENTERED this 10th day of August, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 10th day of August, 2020. COPIES FURNISHED: Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-3007 (eServed) Frank D. Upchurch, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-9066 (eServed) Emily Gardinier Pierce, Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Courtney P. Gaver, Esquire Rogers Towers, P.A. 100 Whetstone Place, Suite 200 St. Augustine, Florida 32086 (eServed) T.R. Hainline Jr., Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Jason R. Teal, Esquire Office of General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Paul M. Harden, Esquire The Law Firm of Paul M. Harden, Esquire 501 Riverside Avenue, Suite 901 Jacksonville, Florida 32202 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Mohammad O. Jazil, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Craig D. Feiser, Esquire City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Trisha Bowles, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202-5721 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue Whether the amendment to the Wakulla County Comprehensive Plan adopted by the Board of Commissioners of Wakulla County in Ordinance No. 2002-28 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact Wakulla County Wakulla County sits on the western side of the Big Bend, an area of Florida that joins its panhandle to the state's peninsula separating the Gulf of Mexico and the Atlantic Ocean. Bounded on the north by Leon County, on the east by Jefferson County, on the west by Franklin and Liberty Counties, and on the south by the Gulf, more than 67 percent of the land area of Wakulla County is in public ownership. The bulk of publicly owned lands is in the Apalachicola National Forest. The land area of the County under public ownership is designated Conservation on the County's Future Land Use Map (the FLUM). Under the County's Comprehensive Plan only publicly- owned lands may be designated Conservation. The publicly-owned land lies mostly in the western portion of the County although it extends into the eastern half at the County's southern edge along the coast. Accordingly, almost all of the land area available for development to serve the population, including the City of Crawfordville, lies within the eastern portion of the County. There are two Urban designations under the County's Comprehensive Plan: Urban-1 and Urban-2. There are three areas in the eastern half of the county that have received Urban designations: Panacea and Shell Point, on the coast, and an area in and around the City of Crawfordville. Viewed on a percentage basis, Wakulla County has emerged recently as one of the fastest growing counties in the state. Professionals and retirees account for some of this growth and have served to increase the demand for new subdivisions with homes larger than traditional homes in the county. Geomorphology One of the most distinctive aspects of the County is its geomorphology. It lies entirely within the Gulf Coastal Lowlands physiographic province described by Florida Geological Survey's Bulletin No. 60 as: . . . characterized by generally flat, sandy terrain [that] extends from the coast inland to approximately the 100 foot contour line. In the panhandle of Florida, the east-west trending Cody Scarp forms the boundary between the Gulf Coastal Lowlands and the topographically higher Tallahassee hills to the north. In Wakulla County, the Gulf Coastal Lowlands include the poorly-drained pine flatwoods, swamps, and river basins that extend from the Gulf north into Leon County . . . . [T]he Gulf Coastal Lowlands are locally divided into a series of geomorphic subzones. (Petitioners' Ex. 60, p. 4). A geomorphic subzone that occupies almost all of the eastern half of Wakulla County is the Woodville Karst Plain. The Woodville Karst Plain With extensions into southern Leon County and western Jefferson County, the Woodville Karst Plain takes up almost all of the eastern part of Wakulla County, that is the portion of the county east of the Apalachicola National Forest. It is described by the Florida Geographical Survey, (FGS) an entity within the Department of Environmental Regulation as follows: East of a line drawn roughly north-south through the towns of Crawfordville and Panacea, the topography is comprised of an essentially flat veneer of sand overlying karstic limestone bedrock. Elevations average less that 35 feet above [mean sea level]. * * * The Woodville Karst Plain comprises the entire eastern portion of Wakulla County. Bounded on the west by the Apalachicola Coastal Lowlands, it extends eastward into Jefferson County and north to the Cody Scarp. A surface veneer of generally less than 20 feet of quartz sand lies on the karstic St. Marks Formation and Suwannee Limestone. The result is a topography of low sand dunes and sinkholes sloping gently towards the coast. Vegetation patterns on the plain vary with the degree of drainage. High and well-drained relict sand dunes at the north edge of the plain support a flora of pines, black-jack, and turkey oak trees. In contrast, wetter areas to the south are populated by cypress and bay trees . . . . Id., p. 7. The distinctiveness of the geomorphology of eastern Wakulla County is due to the Woodville Karst Plain's numerous karst features. Karst Features Karst features result when the limestone bedrock has been eroded by acidic rain water. If the erosion is sufficient to dissolve through the limestone sub-strata in a vertical fashion, there occur sinkholes or "Karst windows," a direct connection between the surface water and the aquifer. A wetland may be a karst feature, as well, although geologic tests are necessary to confirm whether a wetland is, in fact, a karst feature. A karst aquifer like the one below the Woodville Karst Plain is a limestone aquifer where extensive dissolution of limestone has occurred as the result of the acidic water interacting with it. If one were to examine the plain from above with the perspective of seeing the holes in the rock that lead to the aquifer, the plain would look like Swiss cheese. Because of the scattering of karst windows, sinkholes, caves and other features that give Karst topography a resemblance to Swiss cheese, Karst topographies like the Woodville Karst Plain are "typically highly vulnerable to contamination." Id. In karst settings where the aquifer is unconfined, as in the case of the Woodville Karst Plain, common contaminants such as fertilizers or household chemicals that reach or are deposited on the land surface are rapidly recharged to the aquifer through percolation or overland flow to a sinkhole. The Woodville Karst Plain's nature as an area of high recharge to the Floridan Aquifer is also promoted by its thin layer of clean sand that overlies the limestone. There are karst features, such as sinkholes, caves, springs and wetlands associated with these features throughout the State of Florida. These features put the state in a "fairly unique position." (Tr. 365). Among the prominent karst features in the Woodville Karst Plain that were the subject of evidence at the hearing are three: Wakulla Springs, the Spring Creek series of submarine spring vents, and Swirling Sink, the sinkhole into which Lost Creek flows at its termination not far from the Property at issue in this proceeding. Wakulla Springs A prominent feature of the Woodville Karst Plain, Wakulla Springs is a system of caves or conduits through which underground water flows before reaching the surface. It is located to the northeast of the Property at issue in this proceeding. Pollutants affecting Wakulla Springs come from the City of Tallahassee upgradient from the Springs. The contamination "stems from storm events, rain events, and runoff from the City of Tallahassee." (Tr. 391). The evidence in this proceeding did not establish that development on the Property will create adverse impacts to Wakulla Springs because the Property is downgradient from Wakulla Springs. There is another set of springs at issue in this proceeding for which the evidence leads to different conclusions: the fresh water springs the waters of which flow from Spring Creek through Karst features to discharge into the salt waters of the Gulf. Spring Creek Springs The Spring Creek submarine group, a series of seven spring vents that discharge fresh water into the Gulf of Mexico, begin at Spring Creek, five or six miles to the southeast of the property. Like Wakulla Springs, water flows through caves and conduits before emerging. Unlike Wakulla Springs in which the water flows only to the surface of land, waters from the Spring Creek group flow into the Gulf of Mexico. Freshwater springs in the state of Florida are estimated to number nearly 600. A first magnitude spring is one that "produce[s] the greatest amount of water." Petitioners' 54, p. 9. Of Florida's 33 first magnitude springs, the Spring Creek submarine group is the largest. The Spring group, therefore, is also the largest spring of the 600 or so in our State, the totality of which "may be the largest concentration of freshwater springs on Earth." Id., at 1. "Florida's Springs, Strategies for Protection and Restoration," prepared for the Secretary of the Department of Environmental Regulation and the Citizens of the State of Florida, by The Florida Springs Task Force in November of 2002, was data available to the County and DCA when the Amendment was considered. It states: A spring is only as healthy as its recharge basin . . . The groundwater that feeds springs is recharged by seepage from the surface through direct conduits such as sinkholes. Because of this, the health of spring systems is directly influenced by activities and land uses within the spring recharge basin. (Petitioners' Ex. 54, p. 11). The Florida Geological Survey is in the Division or Resource Assessment and Management in the Department of Environmental Protection. Its Special Publication No. 47 (the Special Publication), is entitled "The Spring Creek Submarine Group, Wakulla County, Florida," and is dated 2001. It states that "[g]round-water flow in the karst drainage system of the upper Floridan aquifer system of the Woodville Karst Plain is likely controlled in part by the fracture (lineament) pattern in the carbonate bedrock . . . ." Petitioners' No. 61, p. 10. A lineament is a "geologic term for a linear fracture or fault that typically is observed either in the field or through photographic analysis." (Tr. 395). The question "would . . . karst features be part of what caused a geologist to conclude that a lineament was present," elicted this response from Tim Hazlett, Ph.D., an expert in hydrogeology: Yes. The karst features and the lineaments typically coincide in karst environments because the lineaments provide preferential pathways for flows, so you'll get sinkholes, for example, that line up along a lineament. That's very typical in a karst situation. Id. The narrative in the Special Publication refers to Figure 7 which shows the fracture pattern of lineaments that run along Lost Creek and then continues in a southeasterly direction to Spring Creek. The Figure indicates "[p]ossible underground flow from Lost Creek to Spring Creek." Petitioners' No. 61, p. 11. The Special Publication states that "[b]ased on the predominant ground-water pattern of the Woodville Karst Plain, and the trend of the lineaments associated with both Lost Creek and Spring Creek, it is postulated that the upgradient source of groundwater supplying the Spring Creek springs is, at least in part, the surface water from Lost Creek. Lost Creek Originating in the Apalachicola National Forest just north of the county line, Lost Creek flows to the southeast. After crossing the Leon County line, it rambles roughly nine miles through forested lands in Wakulla County. The creek terminates when it turns underground into Swirling Sink, a sinkhole at a point southwest of the center of Crawfordville. As Intervenor Suber states in review of Petitioner Lambou's testimony, "Lost Creek is a surface stream that flows from Leon County, southeast through western Wakulla County to the western edge of the Woodville Karst Plain, where it disappears underground approximately a mile west of Crawfordville at a bridge at U.S. 319." Intervenor's Proposed Recommended Order, Para. 53, p. 15. When Lost Creek floods, waters to the southeast of the point at which the creek "disappears" form a sump or bowl in an area of low elevation that is contained within the bounds of State Road 319, State Road 98 and Rehwinkle Road. Also contained within these bounds and in the midst of the sump is the site of that with which this proceeding is concerned: the Property. The Property The Property is a 266-acre undeveloped tract located in the County off of Rehwinkel Road southeast of the City of Crawfordville. Formerly owned by St. Joe Timber Company, it is now owned by David F. Harvey, Rhonda K. Harvey, and L. F. Young. The timber company had used the Property for silviculture. The owners intend to sell it to Brad Suber for development purposes. The Property is bisected by a bay/cypress wetland. It occupies "on the order of 85 . . . [to] 86 acres" (tr. 580) of the Property. The wetland is described by others including Intervenor Suber as "large" (Suber PRO, p. 4, para. 13). The acreage it occupies on the Property will be referred-to in this order as the "Large Wetland." A report entitled "Environmental Report on Vegetation Communities, Wetlands, Protected Species and Wildlife on Rehwinkel Road Parcel Wakulla County, Florida" was prepared by Florida Environmental & Land Services, Inc., at the request of Intervenor Suber. On page 3 of the report, the Large Wetland is described: AREA 5 - Large bay/cypress wetland through center of parcel. This area comprises approximately 85 acres of the parcel. The swamp characteristics were similar throughout the swamp (except in AREA 9). Dominant tree species include bald cypress, black gum, red maple, sweetbay magnolia, and swamp tupelo. Many of the titi individuals were large enough to consider in the canopy layer. There were few shrubs other than titi and young individuals of the canopy species. There was essentially no groundcover layer because of long inundation periods, the winter sampling and a closed canopy. The trees showed evidence of long periods of inundation such as lichen lines, buttressing, hummocking, and stained trunks. There was heavy inundation within the access roads. No flows were evident. Joint Ex. 2, p. 367, (e.s.) The reference to the acreage of the Large Wetland was not intended to be a "definitive wetland delineation," rather "it was intended to just give an idea of [the] size . . . of the [Large] [W]etland . . . " (Tr. 859). Other evidence of record, however, establishes that the approximation was quite accurate. (See paragraphs 56 and 57, below). The Large Wetland occupies at least 85 acres of the Property. A delineation using an acceptable current methodology could yield a figure significantly more than 85 acres. Portions of the Large Wetland are within the 100-year flood plain and are subject to flooding. The Large Wetland extends roughly from the east side of the Property to the west where it connects with the Lost Creek watershed. The Property also contains a portion of an isolated cypress swamp and numerous small wet depressional areas, each less than two acres in size, on the Northern Portion of the site. The acreage of wetlands in the Northern Parcel is not included in any reference in this order to the acreage of the Large Wetland. The Property does not currently contain any significant residential or non-residential development or structures. Near-by Land Uses The Property is contiguous to land with the following FLUM designations: Urban-1 and Agriculture to the north; Rural- 1 and Rural-2 to the east and southeast; and Agriculture to the southwest and west. Lands located to the north, east and southeast of the Property are developed with scattered low density residential uses or are vacant. These lands include nearby agricultural land and a 1,100-acre tract recently re-designated Rural-1 from Agriculture. Land use bordering the property on the south, southwest and west is Agriculture. There is also a golf course to the south. The designation of use of the land bordering the Property on the southeast is Rural-2. Rural-1, Rural-2, and Agriculture Rural-1, also referred to by the Wakulla County Comprehensive Plan (the Plan) as "Agriculture/Rural Fringe," is a conventional agriculture and low density residential designation. Residential densities in the Rural-1 future land use category are one unit per five acres on paved County or state roadways, or one dwelling unit per ten acre on unpaved roadways. Rural-2, the designation of twenty of the acres of the Property re-designated by the Ordinance, is described in the Plan: Description - This designation provides for development of rural areas near emerging urban areas with a range of agricultural, residential, and supporting limited commercial activities. In addition, this classification includes some existing subdivisions. Specific areas for residential and commercial development in this designation are not shown on the map but are governed by the policies in this section which include criteria for the different kinds of development. (Joint Ex. 3, FLUE-8). The description states that existing rural enclaves, those "isolated from traditional rural or urban services such as central water and sewer service" (id.), are also identified by the Rural-2 designation. Industrial uses are prohibited in Rural-2. Commercial development on arterial and collector roads subject to conditions is permitted. Public land use including schools subject to certain conditions is permitted. Residential development is permitted, as are "[g]eneral agriculture and forestry activities . . . along with accessory activities." Id. The density limitations for residential in Rural-2 are "up to one (1) unit per two (2) acres with central water service or one (1) dwelling unit per five (5) acres without." Id., at FLUE-8 and 9. Actual density permitted, however, is based on access: Where average lot sizes (exclusive of open space in cluster or PUD developments) are less than (5) acres, each lot shall have frontage on a paved public road or on a private road maintained by an owners association and meeting the standards of Traffic Circulation Element Policy 2.3. Where average lot sizes . . . are greater than five (5) acres but less than ten (10) acres, each lot shall have frontage on a public road or on a private road meeting [certain standards]. Where average lot sizes . . . are ten (10) acres or more, access shall be provided. Id., at FLUE-9. The Plan has requirements for calculating residential density in areas that are wetlands or habitats for threatened or endangered species or wetlands. Habitat density is "maintained at the residential land use density for that land use designation." Id. Wetland density is "at an overall density of one (1) unit per twenty (20) acres." Id. Agriculture is also referred to in the Plan as "Primary Agriculture." Description - This designation is designed to address large scale timber industry and/or farming activities on privately owned property, along with limited non- agricultural uses. Joint Ex. 3, p. FLUE-4, Future Land Use Policy 1.2.2.(1). Uses allowed include forestry and agricultural uses and processing activities, including ancillary processing uses such as sawmills, residential uses at a maximum overall density of one unit per 20 acres, and public uses. Id., Policy 1.2.2.(2) and (3). Application for a Map Amendment The process that led to the Ordinance's passage in October of 2002 commenced on December 28, 2001, with the submission of the Owners' application for a comprehensive plan map amendment. The Owners applied for an amendment that changed all 266 acres, the 246 acres of Agriculture and the 20 or Rural- 2, to Urban-1. Urban-1, is also referred to in the Plan as "Urban Fringe." Description - This designation provides for higher density development in rural areas which are near urban areas or which are intended to become urban during the planning period. When full urban services are in place, an area designated for Urban-1 shall be converted to Urban-2 through the plan amendment process. This designation also accommodates existing clusters of development not strictly consistent with the Rural designation. Joint Ex. 3, p. FLUE-10, Future Land Use Element Policy 1.2.5.(1). Permitted uses under Urban 1 include residential and commercial development. Public uses including schools are permitted under certain circumstances. Light industrial and manufacturing uses may be permitted subject to location and compatibility standards. Among the density/intensity limitations in 1.2.5 of the Plan are residential at one unit an acre where no central sewer is available and at two units an acre where soil tests determine suitability for septic tanks and where central water is available. Under the proposed amendment, therefore, the maximum density allowable on 266 acres of Urban-1 would be 524 units. As explained elsewhere in this order, however, only 202 acres were re-designated Urban-1, making 404 units the maximum density pursuant to the re-designation. Transmission to DCA The proposed map amendment and two proposed text amendments were transmitted to DCA for review on May 6, 2002, with copies to various review agencies. Included in the plan amendment transmittal package was a copy of a recorded agreement entered by the property owners and Wakulla County entitled "A Development Agreement Restricting the Density of a Comprehensive Plan Amendment." Joint Ex. 1, p. The agreement restricts development on the 266-acre property "to facilitate the Owner's request" to "residential density maximum of one dwelling unit to the acre of uplands and developed on central sewer and water" Joint Ex. 1, p. 65. The restriction "shall run with the land and permanently restrict the use of the said land." Id. p. 66. Despite the maximum density allowable under the Amendment of 404 units, the Development Agreement restricts maximum density to 202 units. Development Agreements are data. Nonetheless, as explained by Charles Gauthier, the DCA's Chief of the Bureau of Local Planning, The review of future land use map amendments needs to be based on the maximum development potential available through the comprehensive plan. Development agreements, while important information, are outside the plan, so the level of development or other commitments in a development agreement aren't part of the direct plan or review, but its important information to understand the specific development agreement that's occurring. (Tr. 118, 119). This testimony is taken to mean that DCA review of a Comprehensive Plan Amendment must be conducted on the basis of maximum allowable density under the Amendment even if that density is restricted by the Development Agreement. Other data in the agreement, however, such as data related to provision of public services is relevant to a "compliance" determination. Regional Planning Council Objection On June 13, 2002, the Apalachee Regional Planning Council (RPC) issued its report. The RPC objected to the map amendment proposed by the Owners on four grounds, each followed by a recommendation. The first three objections related to density, commercial use and access. The RPC recommended density of no more than one unit per acre, retention of square footage policies concerning commercial development and provision of additional access. The fourth objection and recommendation concerned wetlands and floodplain areas: Objection 4: Of the 266 acres proposed to be changed to Urban 1, approximately 100-110 acres are wetland and 130-140 acres are within the 100 year floodplain. Recommendation: Do not include the wetland and floodplain areas in the land use change. Joint Ex. 2, p. 204. State Agencies Other Than DCA The Department of Environmental Protection (DEP) reported its review of the proposed change in a letter dated June 18, 2002. It provided comments and recommendations, also expressing concern about wetland and flood plain area protection: As indicated in the site assessment reports provided, a significant portion of the Rehwinkel Road Parcel is located within Flood Zone A on the Wakulla County Flood Insurance Rate Map, Panel #120315 0250 B (1983). The flood plain wetlands at the center of the site contain drainage soils (primarily Lakeland, Otela and Ortega sands). The uplands to the north also contain numerous wet depressional areas - likely karstic sinkhole features. The Department recommends that the proposed residential development be limited to upland areas outside of Flood Zone A and that wetland/floodplain areas be given a conservation designation to prevent encroachment after initial construction. Prior to finalizing infrastructure development plans for the subject parcel, delineation and state verification of the landward extent of wetlands should be obtained, in accordance with the guidelines of Rule 62-340, F.A.C. Because the proposed development would be located on highly- permeable soils adjacent to seasonally inundated areas, we recommend that the applicant consider a full range of planning strategies to buffer wetlands/floodplain, limit impervious surfaces and treat stormwater to protect groundwater and nearby surface water resources. The proposed central water and sewer systems will reduce potential water quantity and quality impacts from potable water well withdrawals and septic tank system contamination. Early coordination of project plans with the Department's Northwest District Branch Office in Tallahassee is recommended to facilitate infrastructure design and prevent future permitting problems. Joint Ex. 2, p. 205. The Department of State reported that an archaeological site is recorded as a "general vicinity" site adjacent to the Property and that "aboriginal 'house' sites" are reported throughout the area. Id., p. 192. It stressed the "county's responsibility to ensure its historic sites and properties are considered when land use changes occur" and recommended "that the county sponsor a systematic survey of this parcel before allowing any changes in land use which will increase its density or intensity." Id. The Department of Transportation (DOT) had no objections, comments or recommendations as of its June 4, 2002, communication by letter with DCA. The communications from the RPC, DEP, Department of State, and DOT were reviewed by DCA prior to its issuance of an ORC Report. ORC Report Issuance of an "Objections, Recommendations and Comments" Report (an ORC) by the Department of Community Affairs is done whenever DCA has problems with a comprehensive plan amendment that could lead to a finding that the amendment was not in compliance if left unresolved. An ORC was issued to Wakulla County for the proposed FLUM amendment. The ORC, under cover of a letter to the Chairman of the Wakulla County Board of Commissioner dated July 18, 2002, stated the following: Objections, Proposed Amendment 3: The proposed map amendment does not demonstrate the suitability of this site for development considering the extensive wetlands and floodplains in the areas that are proposed for conversion to the Urban-1 Future Land Use Category. The proximity to the water table to the land surface, existing karst sinkhole features, extensive wetlands and 100 year floodplain indicate a high potential for water quality degradation and ground water contamination. Development of the southwestern portion of the site would require constructing road access through extensive wetlands and would place the singe access road within the 100 year floodplain. Potential isolation of this site during floods creates the potential for public safety, emergency management and evacuation problems. The proposed amendment is not consistent with Rule 9J-5.006(2)(b)1. and (2)(e), FAC, concerning site suitability; Rule 9J-5.-- 6(3)(b)4, requiring protection of natural resources; Chapter 163.3178(d)(d) concerning public evacuation during natural disasters; and Rule 9J-5.006(2)(c) and Chapter 163.3177(6)(a) concerning need analysis. Recommendations: The land use change should be limited to the northern parcel with road access. The large, contiguous areas of wetlands and floodplain areas and the southern isolated parcel should not be included in this proposed land use change to the Urban-1 Future land Use Category at this time. Designation of the wetland areas as Urban on the FLUM implies a development potential. Wetlands and floodplains should be designated appropriately on the FLUM to prevent encroachment from incompatible land uses. Currently, the Conservation Future Land Use Category as written in the County's comprehensive plan is intended only for publically [sic] owned lands. This category could be amended to also afford protection to environmentally sensitive, privately owned land. A needs analysis of the Urban 1 and 2 areas of Crawfordville should be done to support the need for the proposed land change. Consistency with Chapter 187, Florida Statutes. The proposed amendment is not consistent with the following provisions of Chapter 187, FS: !87.201(10), FS, [sic] concerning the protection of ecological systems such as wetlands. 187.201(16), FS, concerning direction development to areas that can accommodate growth in an environmentally acceptable manner and the separation of urban and rural uses. By addressing the objections noted in Section I., these inconsistencies with Chapter 187, FS, can be addressed. Joint Ex. 2, p. 223-4. An ORC Report provides an opportunity for DCA to raise questions about a proposed plan amendment and seek additional information. If the local government rejects DCA's recommendation, that does not necessarily mean that a plan amendment will be found not in compliance. Response to the ORC In response to the ORC, the County left 64 acres of the Large Wetland under the Agriculture designation. It did so after determining the Large Wetland to constitute 63.8399 acres of the Property. In computing the size of the Large Wetland, the County did not follow DEP's recommendation that it use the delineation methodology prescribed by Rule 63-340, Florida Administrative Code. Instead, the County used a Florida Land Use, Cover and Forms Classification System map, (the FLUCCS), the source of which was "FDEP," that shows the Large Wetland to be "63.8399 acres," (Joint Ex. 2, p. 196, 197), or slightly less than 64 acres. No data other than the FLUCCS was used by the County in determining the size of the wetland. The 64 or so acres identified on the FLUCCS was omitted from the proposed land use change and was left under the pre-amendment Agriculture designation as suggested by DCA in its ORC. Other available data, existing at the time of the Amendment, such as an orthoquad aerial depiction, demonstrate that the Large Wetland is significantly larger than 64 acres. Using soil maps and a planimeter, as explained by Petitioners' witness Craig Diamond: . . . generated large[] numbers. The flood plain is far greater than the wetlands on site, and the soils maps . . ., includes some . . . soils that are saturated or that exhibit moderate constraints with regard to drainfields. You . . . end up with number greater than 85 acres . . ., it's up in the hundred acre-plus range. (Id.) The decision of the County to leave only 64 acres of the Large Wetland was not based on the best available data. Use of available data existing at the time of the Amendment and that is better than the FLUCCS, such as aerial photography, soil maps, topographical maps and floodzone maps would have yielded a much higher number of acres than 64, just as did the approximation submitted with the proposed plan amendment by Mr. Suber. The size of the Large Wetland is at least 85 to 86 acres, and may be significantly greater. The Future Land Use Map Amendment On October 21, 2002, Wakulla County amended its Future Land Use Map (the FLUM). The Amendment was accomplished with the passage of Ordinance Number 2002-28, (the Ordinance) by the Board of County Commissioners of Wakulla County. The Amendment is described in the body of the Ordinance in technical terms: Future Land Use Map: Herein adopts the FLU Map revision as shown on the FLU Map dated October 21, 2002, consisting of: A revision or modification resulting from the adoption of the proposed County FLU Map Amendment Application Number CP01-05 of Amendment Cycle 2002-02, as cited in the ORC report by the Department of Community Affairs, from Agriculture and Rural-2 to Urban-1 Land Use Designation; Joint Ex. 1, Ordinance Number 2002-28, Amendment Ordinance, Page Three, Section 2. In essence, the Amendment changed to Urban-1, two FLUM designations of the Property in Eastern Wakulla County. The designations were changed from Rural-2 as to 20 acres of the Property and from Agriculture as to 182 acres of the Property. The 64 acres of the property not re-designated as Urban-1 remained designated as Agriculture. Given the configuration of the 64 acres of the Property left under the Agriculture designation, there are three separate parcels in the Property that were re-designated Urban- One is a portion on the Property north of the parcel (the Northern Parcel) that contained the 20 acres that had been Rural-2, as well as acres that had been agriculture. The second is a small portion to the northwest of the property (the Sliver) that is surrounded, for the most part by the Large Wetland. The third is a portion on the Property south of the Large Wetland (the Southern Parcel). Transmission to DCA, Review and an "In Compliance" Determination The Map Amendment was transmitted to DCA for review on November 1, 2002. On December 11, 2002, DCA issued its Notice of Intent to find the adopted Map Amendment in compliance. On January 30, 2002, the Apalachee Regional Planning Council approved a recommendation from its staff that the Amendment was consistent with the Apalachee Strategic Regional Policy Plan. In the meantime, on January 2, 2003, DCA received the petition for formal administrative hearing that initiated this proceeding. The Parties Petitioners Robert Alessi, Ronald Capron, Chad Hanson, Victor Lambou, and David Westmark are all residents of Wakulla County and owners of property in the county. Alessi and Capron live adjacent to the site of the FLUM Amendment that is the subject of this proceeding. All five of the Petitioners submitted written or oral comments to Wakulla County during the period of time between transmittal of the Amendment to the Department for review and final adoption of the Amendment by Wakulla County. Wakulla County (the County) is a local government subject to the provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. The County adopted the Amendment found "in compliance" by DCA that is the subject of this proceeding. The Department of Community Affairs (DCA or the Department) is the state land planning agency. It has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (the Growth Management Act). Among its responsibilities is the review of local government comprehensive plans and amendments pursuant to the Growth Management Act. The Department's Notice of Intent to find the contested Amendment "in compliance" is the agency action that is at issue in this proceeding. Intervenor Brad Suber is a resident of Wakulla County. He is the developer and contract vendee of the property that is the subject of this proceeding. Mr. Suber's contract with the Property's Owners obligates him to pursue the Amendment, zoning and permits for development of the property at his sole expense. Mr. Suber hired experts necessary to prepare and process the plan amendment application. Like the Petitioners, he also submitted written and oral comments to the County during the period of time between transmittal of the Amendment to DCA and final adoption of the Amendment by Wakulla County. The parties agree that the Petitioners and Intervenor Suber are affected persons as defined by the Growth Management Act with standing to participate in this proceeding. Petitioners' Challenge Petitioners raise issues that fall into seven categories: (1) failure to protect wetlands and other environmental resources; (2) lack of water and sewer; (3) flooding (4) lack of supporting data and analysis; (5) urban sprawl (6) lack of need for the amendment; and, (7) internal inconsistency with the existing Wakulla County Comprehensive Plan. Wetlands and Environmental Resources The County requires protection of the 100-year flood plain, prohibits disturbance of wetlands except to avoid a taking, requires that predevelopment water quality of wetlands be maintained, and requires that the water quality of Wakulla County's groundwater resources be maintained at or above state standards. Development is allowed in flood plains under the County's Plan, and flood plains are common throughout the eastern part of the County. The Comprehensive Plan's Objectives and Policies mitigate the impacts of a future land use map amendment. They do not excuse, however, an FLUM amendment that is based on data that is convincingly incorrect. The DRASTIC Maps referred to in Infrastructure Element Policy 1.3.1(2), show that all of eastern Wakulla County is in one of the environmentally sensitive categories. The Plan allows the use of septic tanks in these areas because if septic tanks were prohibited in environmentally sensitive areas, the limitation on development in eastern Wakulla County would be severe. The applicant submitted an environmental assessment of the property with the original plan amendment application. Figure 3 in the environmental report identifies the soil types and soil distribution on the property based on the U.S. Department of Agriculture's Soil Survey of Wakulla County, Florida, the data source referenced in Future Land Use Element Policy 5.12. Table 8 in the Soil Survey indicates whether the various soil types have slight, moderate, or severe constraints for the use of septic tanks for various types of buildings. The southern parcel is comprised of Lakeland sand and Otela fine sand. Both are considered upland soil types with only slight constraints for the use of septic tanks for dwellings without basements. The northern parcel consists of several soil types with the following constraints for use of septic tanks for dwellings without basements: 21 Lakeland Sand (predominant type) slight 17 Ortega fine sand slight 14 Ridgewood fine sand moderate 7 Otela fine sand slight 35 Rutledge severe Each of the above soil types is considered to be an upland soil, except for Rutledge soil located in the flood plain portion of the northern parcel. In addition, Plummer soil with severe constraints for use of septic tanks are located on the small area to the west of the northern parcel. These are not large areas compared to the remaining property and are not proposed for development in Mr. Suber's conceptual site plan. Soils with severe constraints are subject to state and local permitting standards at the development stage to insure that groundwater is not adversely affected. The Urban-1 future land use category authorizes residential uses at a density of two units per acre where soil tests determine suitability for septic tanks and where central water is available. The use of septic tanks on the property could adversely affect water quality by increasing the level of nitrates in the groundwater. The Wakulla County Comprehensive Plan contains the following objectives and policies related to septic tanks and water quality: OBJECTIVE 5: Development activities shall ensure the protection of natural and historic resources, and shall be limited where severe topographical and/or soil conditions exist. The land development codes shall be revised to implement this objective and the following policies: Policy 5.12: Proposed development in areas of severe soil limitations or topographic conditions, as identified in the U.S. Department of Agriculture, Soil Conservation Service, Soil Survey of Wakulla County, Florida (dated March 1991), shall be subject to density limitations and performance standards. The land development regulations shall establish these limitations and standards, including, but not limited to, the requirement that all development not served by sewer systems meet Florida Department of Health and Rehabilitative Services (HRS) standards for septic systems, Rule 10D-6, F.A.C., and requirements that certification of soil suitability be submitted for the technical review process prior to permitting of commercial buildings. Policy 7.5: All development in areas without central sewer services shall be governed by the provisions of section 381.0065, F.S., regulating on-site sewage disposal systems, and Chapter 64E-6, F.A.C., which regulates the installation of individual sewerage disposal facilities, unless otherwise specified. (Joint Ex. 3, pp. FLUE-23, 26, 28, Future Land Use Element.) OBJECTIVE 1.3: The County will implement mandatory requirements for inspections, operations and maintenance of on-site wastewater treatment systems. Policy 1.3.1: Use of on-site wastewater treatment systems shall be limited to the following conditions: * * * (2) Use of septic tank systems or alternative systems for new development will be allowed subject to modification in areas that are environmentally sensitive based on FDEP's "DRASTIC" map and other sources deemed appropriate. Policy 1.3.3: Issuance of all development orders or permits will be conditioned upon demonstration of compliance with applicable federal, state and local permit requirements for on-site wastewater treatment systems. (Joint Ex. 3, pp. IE-3, 4, Infrastructure Element.) Findings related to Wetlands and Natural Resources are in paragraphs 6-26 and 28-33, above. Sewer and Water Currently, there are no water or sewer services at the site of the Property. Subject to amendment of the City of Sopchoppy's Comprehensive Plan, water to the Property can be provided by City of Sopchoppy Water, as stated in the plan amendment application and as relayed to the County Planning Commission and Board of County Commissioners by Mr. Suber's engineer. County sewer lines are located within one or two miles of the Property in two locations. Although the provision of sewer services to the Property is the responsibility of Wakulla County, any sewer lines run to the Property will be constructed at the expense of the owners or developer. The lines will be conveyed to the County. Joe Richey, the County's Director of Community Development, testified that Wakulla County is the sewer provider, and that capacity is available to serve development of the subject property. Capacity is a term that relates to the size of the sewer plant. The existence of "capacity" does not mean the County has a plan or intends to provide sewer lines. Department staff recommended that DCA not find the amendment in compliance in part because there was no corresponding amendment to the capital improvements schedule setting out the time frame for when public facilities would occur, who was going to pay for them and who was responsible for maintaining them. While the County may not have a plan, the developer would be responsible for running sewer lines to the property and would turn the lines over to the County under the Development Agreement between the County and the property owners. The agreement reflects the commitment of both that the subject property be served by central sewer. There is no requirement that a local government have a future conditions map for water and sewer facilities. At some time before development on the subject property occurs, the County's Plan should be amended to reflect the provision of sewer services to the property if it is developed on sewer. It is not necessary, however, that Wakulla County amend its Capital Improvement Element of its Plan to reflect the provision of sewer service to the property concurrent with the subject future land use map amendment. The plan amendment application, the Development Agreement and the testimony at hearing reflect that the Property will be developed with central water and sewer. Flooding Department staff testified there was not enough information provided by the County on flooding problems associated with the Amendment: great deal of Wakulla County is in various hurricane evacuation zones . . . because of the limitations of the site being in a hundred-year flood plain and in a wetlands system, . . . if a hurricane or a storm event came through and the property was flooded, there would be difficulty evacuating the residents from that property. [DCA Staff] felt like the County had not provided us information to refute that. (Tr. 91, 92). But Joe Blanchard, Director of Wakulla County Emergency Management, testified that there is adequate road capacity on Rehwinkel Road to evacuate residents of 404 units, the maximum allowed under the Amendment. Director Blanchard also testified that if 404 units were built on the Property and were to be evacuated in the event of flooding, that there is not currently capacity to shelter them but that there is hope to have adequate shelter soon: We probably do not [have adequate shelter for 404 new units at the Property] . . . [T]hrough a grant hopefully we will have the Shadeville School very soon approved. It is now approved as a shelter, it just doesn't have the shutters in place. Once the Shadeville School is complete, we will have a surplus of shelter space. (Tr. 1089). He was not asked a question about current capacity to shelter residents of the 202 units to which the Property is restricted by the Development Agreement. "Storm surge is the abnormal rise in water level caused by the wind and pressure forces of a hurricane or tropical storm. Storm surge produces most of the flood damage and drownings associated with storms that make landfall or that closely approach a coastline." Petitioners' Ex. 21, Introduction. Most of the Property would be inundated by storm surge during a Category 2 Hurricane, a hurricane with less force and storm surge than a Category 3. (See Petitioners' Ex. 21, Plate No. 5. Petitioners offered no evidence at hearing, other than Mr. Blanchard's reference to evacuation in the event of a Category 3 hurricane, of the contents of an applicable county or regional hurricane evacuation plan. Data and Analysis Following the staff recommendation, DCA determined that "the data was somewhat weak and the analysis was weak, but . . . relevant, and given the nature of the amendment, ultimately appropriate." (Tr. 117). The data concerning the size of the Large Wetland was not merely weak. It was incorrect. It was also determined above the staff level at DCA that "there was a lack of adequate issues . . . adverse impacts to find the amendment not in compliance . . . essentially . . . there was a lot of smoke but no real fire with the amendment . . . [because] the staff recommendation was more based on the incomplete analysis." (Tr. 120, 121). From this record, it appears that with regard to wetlands incorrect data was used by the County. This data was not corrected when DCA conducted its review that led to its finding of "in compliance." Furthermore, the analysis conducted after the staff recommendation did not include available data and analysis that indicate adverse impacts to natural resources related to the Large Wetland. It must be recognized that each future land use category in the County's Plan that allows residential use contemplates that wetlands will be included in the category and limits densities in those wetlands. Furthermore, there is no express statutory or rule prohibition against including wetlands in a land use category that authorizes development, and the County's Plan, which does just that, has been found in compliance. That is not to condone, however, an amendment that is founded on incorrect data or incomplete analysis. This record demonstrates that the amendment designated at least 21 acres of the Large Wetland as Urban-1 and that the designation poses a potential for pollution to groundwater and surface waters. The amendment is not supported by available data and analysis concerning the wetlands and the impact development could have on natural resources. The County did not react to available data with regard to the wetlands and natural resources in an appropriate way when it designated 202 acres of the Property Urban-1. Need Both Intervenor's expert land use planner and the County's Director of Community Development testified that there is a need for the map amendment. The opinion of Intervenor's expert is generally based upon the location of the property adjacent to the urbanizing Crawfordville area; the fact that the number of units potentially authorized by the map amendment is largely offset by urban lands acquired by the state and federal governments in the Coastal High Hazard Area (CHHA) that are no longer available for urban development; continuing state acquisition efforts in environmentally sensitive areas; the relatively few future land use map amendments for residential uses that have occurred since Plan adoption; and an analysis of population projections compared to the residential development potential of the various future land use categories under the County's Comprehensive Plan. Rule 9J-5.006(2)(b) provides: (2) Land Use Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C. * * * An analysis of the character and magnitude of existing vacant and undeveloped land in order to determine its suitability for use, including, where available: 1. Gross vacant or undeveloped land area . . . . Wakulla County has not tracked development and does not have information available on undeveloped land. Since Rule 9J-5.006(2)(b)1. expressly requires an analysis of vacant or undeveloped land area only if the data is available, the amendment cannot be found not "in compliance" for failure to comply with Rule 9J-5.006(2)(b)1. Rule 9J-5.006(2)(c) requires: An analysis of the amount of land needed to accommodate the projected population, including: The categories of land use and their densities or intensities of use; The estimated gross acreage needed by category; and A description of the methodology used. The Property is located immediately adjacent to the City of Crawfordville urban area and other lands designated Urban-1 on the County's Future Land Use Map. The Courthouse in Crawfordville is the center of the County and is approximately 1.2 miles from the property. Crawfordville is the County seat where public buildings and services are located. It is the County's employment center, with banks, grocery stores, beauty salons, and other businesses, all within a few miles of the property. The only other areas of the County designated for urban development are in Panacea and Shell Point. Both of these areas are within the CHHA. The County's Comprehensive Plan contains policies to discourage high-density growth in the CHHA, direct population concentrations away from the CHHA, and limit public expenditures that subsidize development in the CHHA. It is more appropriate to encourage development adjacent to the growing Crawfordville area than in the CHHA or other areas of the County. In 1999, the State of Florida acquired 41 acres in the CHHA in Panacea for conservation and recreation land uses. This land is designated Urban-2 on the County's Future Land Use Map. The maximum potential residential density on the 41 acres acquired by the State was 164 dwelling units. In 2001, the federal government acquired 90+ acres near Shell Point for a wildlife refuge. This property is also in the CHHA and is designated Urban-1 on the County's Future Land Use Map. The maximum potential residential density on this 90+ acre acquisition is at least 180 dwelling units. Wakulla County is in the process of preparing a plan amendment to change the use of land for all government acquisitions of land that have occurred in the County. Based on the Future Land Use Map, all such acquisitions are redesignated to the Conservation future land use category, which is consistent with the public purposes for which the lands are acquired. The Amendment at issue in this case will result in a maximum potential increase of 375 residential units on the property, based strictly on the density limitations in the future land use categories. The combined maximum potential density on the properties acquired by the State and federal governments is 344 residential units. If the maximum development potential on the subject property is offset by the maximum development potential of the recently acquired public lands, the Amendment will increase the overall maximum potential residential density in Wakulla County by only 31 dwelling units. The analysis of Intervenor's expert contained a number of computational errors. These errors did not affect the offset of the loss of residential land purchased by government. Urban Sprawl When taken as a whole, the Amendment does not contribute to urban sprawl. The property abuts urban areas near the "downtown" section of Crawfordville. It is within a development corridor for the County. It is a relatively small parcel of land. Internal Inconsistency Petitioners contend that the Amendment produces an internal inconsistency because policies of the conservation element relied upon for protection against adverse impacts to wetlands and natural resources have not been implemented by the County through the adoption of land development regulations. The Department responded with an explanation of its scope of review of amendments to comprehensive plans: [DCA's] assumption and . . . review [is] based on the policies in the plan, and [the] premise that these polices were followed through on. The Department does not have any direct purview over land development regulations or development permits . . . [I]f third parties believe the County had not put land development regulations in place or had in place inconsistent regulations or was issuing inconsistent development permits, Chapter 163 offers different challenge mechanisms for those matters. [DCA] review is . . . based on the corners of the plan and the policies of the plan . . . (Tr. 178, 179).
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 amendment to the Future Land Use Map of Wakulla County's Comprehensive Plan passed by Ordinance 2002-28 of the Board of Commissioners of Wakulla County be determined to be not "in compliance." DONE AND ENTERED this 11th day of July, 2003, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 11th day of July, 2003. COPIES FURNISHED: Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Terrell K. Arline, Esquire 3205 Brentwood Way Tallahassee, Florida 32308-2705 Debra A. Swim, Esquire 1323 Diamond Street Tallahassee, Florida 32301 Donna Biggins, Esquire 515 North Adams Street Tallahassee, Florida 32301 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sherry A. Spiers, Esquire Law Offices of Robert C. Apgar, P.A. 320 Johnston Street Tallahassee, Florida 32303
The Issue The issue in this case is whether an amendment to the future land use map of the Martin County comprehensive plan, Amendment No. 98-3, is "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes (2000).
Findings Of Fact The Parties. Hobe Sound Citizens Alliance, Inc. (hereinafter referred to as the "Alliance"), is a not-for-profit corporation organized under the laws of Florida. The Alliance was organized in July 1998 primarily to respond to proposed land use designation changes for the property that is the subject of this proceeding and for other property. The Alliance has three officers (a President, Secretary, and Treasurer) and an eight-member Board of Directors. The officers and directors of the Alliance all reside in Martin County, Florida. The members of the Board of Directors are from different neighborhoods in Martin County. The Alliance maintains a mailing list of approximately 500 individuals who are considered "members" of the Alliance. These individuals have all expressed interest in the activities of the Alliance, but have not taken any formal steps to join the Alliance, such as paying dues or completing an application for membership. In fact, the Alliance does not collect dues or have a membership application. Petitioner, Mary A. Merrill, is an individual who resides in an area of unincorporated Martin County, Florida, known as "Hobe Sound." Ms. Merrill serves as President of the Alliance. During the process of adopting the amendment which is the subject of this matter, Ms. Merrill and the Alliance made comments and objections. Respondent, Martin County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is located on the east coast of Florida. The County is bordered on the east by the Atlantic Ocean, on the south by Palm Beach County, on the north by St. Lucie County, and on the west by Lake Okeechobee and a portion of Okeechobee County. Intervenor, Hobe Sound Land Company, Ltd. (hereinafter referred to as the "Land Partnership"), is a limited partnership organized under the laws of Florida. The Land Partnership's general partner is Hobe Sound Land Company, Inc. (hereinafter referred to as the "Land Company") and the limited partners are a number of trusts organized for the benefit of various members of the Reed family. The Land Partnership is the owner of the property which is the subject of this proceeding (hereinafter referred to as the "Subject Property"). The County's Comprehensive Plan. General The County has adopted a comprehensive land use plan as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). The Martin County Florida Comprehensive Growth Management Plan 1999/00 (hereinafter referred to as the "Plan"), has been determined to be "in compliance" as those terms are defined in the Act. The Future Land Use Element The Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE"), consisting of the following: Section 4-1, "Background Information"; Section 4-2, "Analysis of Land Use Features"; Section 4-3, the "Future Land Use Map and Map Series"; Section 4-4, "Goals, Objectives and Policies"; Section 4-5, "Performance Standards"; and Section 4- 6, "Implementation Strategies." Sections 4-1 and 4-2 consist of what the County refers to as "narrative" sections which the County gives less weight to in determining whether an amendment to the Plan is "in compliance" than it gives Section 4-4, which contains the Goals, Objectives, and Policies of the Plan. These narrative sections of the Plan, however, are not "data and analysis." They were adopted as a part of the Plan. See the second unnumbered page of the Plan. The FLUE establishes 13 separate and distinct land-use categories. These land-use categories determine the uses to which property subject to the Plan may be put. The Plan's Future Land Use Map and Map Series (hereinafter referred to as the "FLUM"), depicts all property subject to the Plan and depicts the land use category assigned to all property in the County. Among the land use categories established in the FLUE pertinent to this proceeding is the "Institutional" land use category. To distinguish this category from the "Institutional- County" land use designation of the FLUE, the category is referred to as the "General Institutional" category. Property designated as General Institutional is subject to the following sub-categories or intensities of use: "retirement home, churches, schools, orphanages, sanitariums, convalescent, rest homes, cultural organizations, military, colleges, hospitals, federal, municipal, utilities, and rights- of-way." Section 4-4.M.1.h.(3). of the FLUE, provides the following Policy governing the use of General Institutional property: General Institutional - The General Institutional category accommodates public and not-for-profit facilities such as, but not limited to schools, government buildings, civic centers, prisons, major stormwater facilities, fire and emergency operation center facilities, public cemeteries, hospitals, publicly owned public water and sewer systems, dredge spoil management sites, and airports. Investor owned regional public water and sewer systems and private cemeteries may be allowed in General Institutional. . . . While Institutional use is reserved for the above uses, this shall not prohibit for- profit medical offices and other ancillary facilities owned by a non-profit hospital as long as they are part of a Planned Unit Development. . . . . . . . The Plan also establishes land use categories in the FLUE for the residential use of property. All land which is designated for residential development on the FLUM is subject to Section 4-4.M.1.e. of the FLUE: The Land Use Map allocates residential density based on population trends; housing needs; past trends in the character, magnitude, and distribution of residential land consumption patterns; and, pursuant to goals, objectives, and policies of the Comprehensive Growth Management Plan, including the need to provide and maintain quality residential environments, preserve unique land and water resource and plan for fiscal conservancy. There are seven types of designated residential land use categories created by the Plan. Those uses include the following: 10 units per acre for "high density;" 8 units per acre for "medium density;" 5 units per acre for "low density residential;" 2 units per acre and 1 unit per acre for "estate density;" .5 units per acre for rural areas. There is also a "mobile home density" category. The lowest density of .5 units per acre is reserved for those areas that are designated as rural. The estate density categories are used for areas are located "generally on the fringe of the urban service districts and generally are not accessible to a full complement of urban services." Sections 4-4.M.1.e.(1) and (2) of the Plan. Of primary pertinence to this proceeding is the residential land use designation of "Low Density Residential." Residential land designated "Low Density Residential" is limited by Section 4-4.M.1.e.(3). of the FLUE as follows: Low Density Residential Development. The low density residential designation is reserved for land accessible to existing urban service centers or located in the immediate expansion area. Densities permitted in this area shall not exceed five (5) units per gross acre. Review of specific densities shall be directed toward preserving the stability and integrity of established residential development and toward provided equitable treatment to lands sharing similar characteristics. Design techniques such as landscaping, screening and buffering shall be employed to assure smooth transition in residential structure types and densities. Generally, where single family structures comprise the dominant structure type within these areas, new development on undeveloped abutting lands shall be required to include compatible structure types on the lands immediately adjacent to existing single family development. Excessive Residential Property and the Active Residential Development Preference Planning System. Section 4-2.A.6.c. of the Plan recognizes that the County has designated an excessive amount of land for residential use. This section of the Plan indicates that, at the time the Plan was adopted, there was a projected need for 26,231 acres of land to accommodate the projected population of the County to the Year 2005. It also indicates that, as of the date of the Plan, 35,834 acres of vacant land had been designated for residential use, well in excess of the amount of land necessary to meet demand. Despite the requirements of the Act and Chapter 9J-5, Florida Administrative Code, requiring appropriate planning for residential needs within a local government's jurisdiction, the Plan was approved by the Department as being "in compliance" with the designation of an excessive amount of land for residential use in the County. Instead of requiring strict compliance with the provisions of the Act and Chapter 9J-5, Florida Administrative Code, dealing with planning for future residential land use needs, the County and the Department entered into a Stipulated Settlement Agreement specifying that the Plan include a requirement that the County undertake the collection of more current land use data and refine the various land use predictive factors it had been using. The Stipulated Settlement Agreement also required that the County institute an Active Residential Development Preference Planning System (hereinafter referred to as the "ARDP System"), to monitor the timing and location of residential development in the County. Section 4-2.A.8. of the Plan provides a Policy dealing with future residential land use requirements for the County. The Policy reports the over-allocation of vacant land designated for residential uses in the County and the need for the ARDP System. The Policy specifically provides, in part: While the current pattern on the Future Land Use Map will remain as is, an active residential development "125% test" will be used in conjunction with location and land suitability requirements in the review and approval of future land use and/or project requests. These requirements shall include, at a minimum, location within the Primary, or Secondary Urban Service District; consistency with the Capital Improvement Element; protection of natural resources; and adequate provision of facilities and services at the adopted level of service. The Policy goes on to provide that residential development in the County will be maintained at 125 percent capacity through the ARDP System and describes other measures to reduce the amount of excessive residential property to be developed in the County. Section 4-4.A.6. of the Plan establishes a Policy requiring that the County implement the ARDP System by May 1991. Consistent with Section 4-4.A.6. of the Plan, the County has adopted the ADRPP System. Environmental Protection Considerations in the FLUE Section 4-2.A.6.d. of the Plan recognizes that residential use of land located near or on the coast can threaten the "preservation of the very attributes of the area which make it attractive for growth." Therefore, the Policy provides that any such development is to be planned to minimize the threat by "assuring that the environmentally sensitive and threatened habitats are preserved." The Policy also provides: Certain areas in Martin County are recognized and beginning to be identified by federal, state and local programs as environmentally sensitive. These areas provide special value in producing public benefits, including: recreational opportunities, life support services, tourism, commercial and sport fishing, scenic values, water purification, water recharge and storage, and sensitive habitats critical to the survival of endangered wildlife and plants. Urban development in or adjacent to environmentally sensitive areas can significantly reduce their environmental values. Additionally, there are important public health concerns associated with development in these areas, particularly in relation to potable water and waste disposal in low lying areas. . . . Section 4-2.A.6.f. of the Plan recognizes the importance of natural vegetation. The Policy also recognizes that urban development removes or alters the County's natural vegetation. Coastal Management Element Section 8.4 of the Plan establishes the Goals, Objectives, and Policies for the Coastal Management Element of the Plan. The area subject to this Element is described on maps adopted as part of the Element, including the map depicted in Figure 8-1. The Subject Property is not located within the coastal management area established by the Element. Section 8.4.A.2.a. of the Plan provides "land use decisions guidelines" requiring a consideration of the impacts of development on fish, wildlife, and habitat, including cumulative impacts. These guidelines, however, apply to development within the coastal management area established by the Plan. Conservation and Open Space Element Chapter 9 of the Plan establishes the Conservation and Open Space Element. The Goals, Objectives, and Policies of the Element are set out in Section 9-4 of the Plan. Section 9-4.A. of the Plan establishes the following Goal: The goal of Martin County is to effectively manage, conserve and preserve the natural resources of Martin County giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries and wildlife with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon. Section 9-4.A.2.a. of the Plan requires that the County continue to enforce and improve its Wellfield Protection Ordinance. The Wellfield Protection Ordinance is intended to regulate land use activities within the zones of influence of major wellheads. Section 9-4.A.2.b. of the Plan provides the following: New potable water wells and wellfields shall be located in areas where maximum quantities of regulated materials (e.g. hazardous and toxic materials) do not exceed the proposed criteria of the Wellfield Protection Ordinance. At the time future wellfield locations are identified, establishment of incompatible land uses within the zones of influence of such wells shall be prohibited. Objective 9-4.A.9. of the Plan provides for the protection and enhancement of wildlife and habitat. Policy 9- 4.A.9.a. of the Plan provides the following: Land use decisions shall consider the effects of development impacts on fish, wildlife and habitat and the cumulative impact of development or redevelopment upon wildlife habitat. In cases where rare, endangered, threatened or species of special concern are known to be present, a condition of approval will be that a preserve area management plan be prepared at the time of site plan submittal. . . . To ensure adequate protection, protected plants and animals, which cannot be provided with sufficient undisturbed habitat to maintain the existing population in a healthy, viable state on site, shall be effectively relocated in accordance with local, state and federal regulations. Potable Water Service Element Chapter 11 of the Plan establishes a Potable Water Service Element. The Goals, Objectives, and Policies of this Element are contained in Section 11-4. Section 11-4.A.5 of the Plan provides that, by 1991, the County was to establish programs to conserve and protect potable water resources within the County. The specific components of the programs are provided. None of those provisions are relevant to this matter. Drainage and Natural Groundwater Aquifer Recharge Element Chapter 13 of the Plan establishes a Drainage and Natural Groundwater Aquifer Recharge Element. The Goals, Objectives, and Policies of this Element are contained in Section 13-4. Section 13-4.A.1. of the Plan establishes the following Objective: Martin County will maintain existing ground water and surface water quality, improve areas of degraded ground water and surface water quality and prevent future contamination of ground water supply sources. Section 13-4.A.2. of the Plan establishes the following Objective: "Enhance the quantity of ground water recharge and maintain desirable ground water levels." The Objectives, and the Policies established to carry them out, recognize the significance of ground waterrecharge and groundwater levels in the County. Preservation of groundwater recharge and groundwater levels is a significant goal of the County. None of the Policies established to carry out the foregoing Objectives specifically eliminate the use of vacant land located near wells for residential purposes. Plan Amendment Adoption Procedures Procedures for the adoption of amendments to the Plan are established in Section 1.11, "Amendment Procedures," of the Plan. Section 1.11.C.2. of the Plan provides the following procedures for evaluating changes to the FLUM: In evaluating each land use map amendment request, staff begins with the assumption that the 1982 Land Use Map, as amended, is generally an accurate representation of the Board of County Commissioners and thus the community's intent for the future of Martin County. Based on this assumption, staff can recommend approval of a requested change providing consistency is maintained with all other Elements of this Plan if one of the following four items is found to be applicable. That past changes in land use designations in the general area make the proposed use logical and consistent with these uses and there is adequate availability of public services; or That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. That the proposed change would meet a necessary public service need which enhances the health, safety or general welfare of County residents. In the event that staff can not make a positive finding regarding any of the above items, then staff would recommend denial. (Emphasis added). The Plan requires that the Director of the County's Growth Management Department, after review of a proposed amendment, submit recommendations to the Local Planning Agency for consideration. The Local Planning Agency is required to certify its findings and recommendations to the Board of County Commissioners of Martin County (hereinafter referred to as the "Board"). Miscellaneous Provisions of the Plan. Section 4-2.A.6.e. of the Plan deals with agricultural use and vacant land. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.A.1.a. of the Plan establishes a Policy that requires that the County revise its Land Development Regulations in existence at the time the Plan was adopted. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.E.1. of the Plan requires that the County revise its Land Development Code by July 1990. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. The County's Sustainable Communities Designation Agreement. The County and the Department of Community Affairs (hereinafter referred to as the "Department"), entered into a Sustainable Communities Designation Agreement (hereinafter referred to as the "Designation Agreement"). The Designation Agreement was entered into pursuant to Section 163.3244 of the Act. Pursuant to the Designation Agreement, the Department designated the County as a "sustainable community." Among other things, the designation of the County as a sustainable community eliminates the need for the County to have the Department review and comment on amendments to the Plan that affect areas within the urban growth boundary or "Primary Urban Services District" created by the Plan. The Subject Property. The Subject Property is a parcel of real property located in the Hobe Sound area of unincorporated Martin County. The Subject Property consists of approximately 24.5 acres of land. The land use designation for the Subject Property on the FLUM is General Institutional. The Subject Property is undeveloped, vacant land. It is comprised of sandy soils, native upland scrub habitat with native Sand Pine groundcover. The Subject Property was described in an Executive Summary of the proposed plan amendment considered by the County as follows: The parcel is located in an area considered to be one of the last contiguous large areas of native upland scrub habitat in Florida. Groundcover is almost entirely native Sand Pine with some primitive trails and small areas of disturbed land. Endangered species found on the parcel include the Florida Scrub Jay and Gopher Tortoise. Sand Pine is considered to be endangered, unique or rare and the Comprehensive Plan policy 9- 4.A.7.f(2) states that "Where possible, increased conservation (twenty-five (25) percent of the total upland area) of native upland habitats which are determined to be endangered, unique or rare in Martin County, or regionally rare will be required by Martin County." The Subject Property is bounded on the north by Saturn Avenue, a two-lane residential street; on the south and west by undeveloped land; and on the east by U.S. Highway One, a multi- lane divided highway. The property to the north is designated Low Density Residential; the property to the east is designated for commercial uses; and the property to the south and west is designated General Institutional. While located relatively close to the Intercoastal Waterway, the Subject Property is not located on the "coast." The Subject Property was previously owned by the Hobe Sound Water Company, a privately owned water utility. At the request of Hobe Sound Water Company, the Subject Property was designated as General Institutional. No wells currently are located on the Subject Property. The Subject Property was acquired from the Hobe Sound Water Company by the Land Partnership. The undeveloped land located to the south of the Subject Property is owned by South Martin Regional Utilities (hereinafter referred to as "SMRU") and is utilized for a water plant and wells. SMRU acquired this land and the remainder of the land used by the Hobe Sound Water Company from the water company. There are five wells located on the property to the south of the Subject Property. The property to the west of the Subject Property is also owned by SMRU but is not being utilized for wells. The property acquired by SMRU was, and remains, designated as General Institutional. The Subject Property serves as a significant ground water recharge area because of the porous nature of the soils of the Subject Property. The Subject Property is located within the Primary Urban Services District of the Plan. The Subject Amendment and Its Review. The amendment at issue in this proceeding was initiated by the Land Partnership after it acquired the Subject Property from the Hobe Sound Water Company. At the time of the acquisition of the Subject Property, the Land Partnership knew or should have known that it was designated for General Institutional use. The Land Partnership requested a change in the land use designation for the Subject Property on the FLUM from General Institutional to Low Density Residential or "the most appropriate land use designation." The proposed amendment was reviewed by the staff of the County's Growth Management Department. Among other things, the staff considered whether any of the four items specified in Section 1-11.C.2 of the Plan applies to the amendment. The staff determined that the first and fourth items listed in finding of fact 41 did not apply, that the second item was somewhat applicable, and that the third item applied to the amendment. The proposed amendment was also reviewed by the Treasure Coast Regional Planning Council (hereinafter referred to as the "TCRPC"). Comments concerning the proposed amendment were prepared by the TCRPC, but were withheld because review by the TCRPC is not required due to the sustainable communities designation for the County. The draft comments of the TCRPC, however, raised objections to the proposed amendment due to concerns over the potential endangerment to the wellfields in the area and the potential destruction of critical habitat and vegetation. No copy of the TCRPC's regional plan was offered in evidence in this case. Nor did anyone associated with TCRPC testify about the draft comments. The Department also informally reviewed the proposed amendment. Rather than prepare an Objections, Comments, and Review report on the proposed amendment, the Department prepared informal comments, which it provided to the County. Those comments were responded to by the County. Hearings to consider the proposed amendment were conducted by the Local Planning Agency. On January 21, 1999, the Local Planning Agency voted to recommend that the proposed amendment not be adopted. The proposed amendment was designated Amendment No. 98-3 (hereinafter referred to as the "Amendment"). The Amendment was adopted by the Board on September 28, 1999, as a part of Ordinance No. 553. The evidence failed to prove that any relevant procedure for adopting the Amendment was violated by the County. The Amendment changed the land use designation for the Subject Property from General Institutional to Low Density Residential on the FLUM. This designation would allow the development of the Subject Property for a maximum of 122 residential units. Data and analysis supporting a potential increase of 122 units of additional residential property did not exist when County adopted the Amendment. Nor does such data and analysis exist now. ARDP System Data. Since the implementation of the ARDP System the County has been collecting and analyzing data concerning residential development in the County. No timely annual update of that data and analysis had been prepared prior to the adoption of the Amendment. The most recent data available was from 1995. During the adoption process for the Amendment, at the request of a member of the Board, an ad hoc report containing data and analysis concerning residential development in the County was prepared and presented to the Board. A full and detailed report was prepared subsequent to the adoption of the Amendment. The report, the ARDP Memorandum of June 7, 2000 (hereinafter referred to as the "ARDP Memo"), was reviewed and approved by the Board. The report was also received in evidence during this de novo proceeding and has been fully considered in preparing this Recommended Order. Pursuant to the ARDP Memo for the five-year period 2000-2004, there is a need for 6,252 residential units needed to serve population increases. The 125 percent cap of the ARDP System on new residential units allowed in the County is 7,816 units. This amounts to an additional 1,564 units authorized by the ARDP System over the actual number of units needed based upon population projections. The number of approved/unbuilt units and other offsets against the number of allowed new residential units for the County during this period totals 7,015 units. Consequently, there are 801 units (7,816 minus 7,015) available for development through the end of 2004. These available units are more than sufficient to cover the additional units which may arise as a result of the development of the Subject Property pursuant to the Amendment. For the five-year periods of 2005-2009 and 2010-2014, there are 6,314 and 6,578 units available for development through the end of these periods, respectively. Despite the foregoing, the approval of an addition of 122 units of residential property will increase an already excessive designation of property for residential use. The Impact of the Amendment. The most significant impact of the Amendment is to further increase the amount of land allocated for residential use in the County. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the amount of the increase in the amount of land allocated for residential use in the County. The Amendment will also negatively impact sensitive habitat for endangered species of plants and animals. Development of the Subject Property, however, as Low Density Residential or General Institutional has the potential for the same general negative impact on sensitive habitat. That negative impact is not inconsistent with what the Plan allows. The Amendment will not have a negative impact on the role of the Subject Property as a ground water recharge area or the availability of potable water in the County. Any development of the Subject Property will be subject to County and South Florida Water Management District regulations requiring that there be no effect on the quality or quantity of ground water in and around the Subject Property as a result of development. The only action that will preserve the environmental features of the Subject Property and its role as a recharge area would be to keep the property undeveloped. Neither the current land use designation of General Institutional nor the proposed land use designation of Low Density Residential will ensure that the Subject Property remains undeveloped. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the negative impacts of the environmental features of the Subject Property and its role as a recharge area. The evidence failed to prove that the Amendment constitutes "urban sprawl" as defined in the Plan. The Need for a FLUM Amendment. In order for the Amendment to be approved, since it is an amendment to the FLUM, it must be shown that one of the four items listed in Section 1.11.C.2. of the Plan is met. The evidence proved, and the parties agreed, that the first and fourth items listed in Section 1.11.C.2. of the Plan do not apply to this Amendment. The remaining two items of Section 1.11.C.2. of the Plan are: That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. While there has been an increase in the amount of development to the north of the Subject Property, the area immediately around the Subject Property has not changed. The evidence failed to prove that any change in the character of the area surrounding the Subject Property "has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics. . . ." The second item listed in Section 1.11.C.2. of the Plan has not been met. The County's determination that the remaining item, that the proposed change would correct what appears to be an inappropriately assigned land use designation, is based upon the fact that the current owner, the Land Partnership, is not the type of entity the Plan identifies as an appropriate owner of General Institutional property. Section 4-4.M.1.h. of the Plan provides the following concerning the ownership of General Institutional designated property: Except for investor owner public water and sewer systems and private cemeteries, Institutional land shall be owned by public agencies or non-profit service providers. As a consequence of the foregoing, the only use to which the Land Partnership may put the Subject Property under its current land use classification would be as a cemetery, public water, or sewer system. The latter two uses are not practicable uses for the Subject Property. Although the fact that the Land Partnership knew or should have known of the land use category of the Subject Property and the limitation of the uses to which it could put the property before it purchased it, it still appears reasonable to conclude that the third item of Section 1.11.C.2. of the Plan applies to the Amendment. I. Petitioners' Challenge. On October 28, 1999, the Alliance and Ms. Merrill, jointly filed a Petition for Administrative Hearings with the Division challenging the Amendment pursuant to Section 163.3244(5)(a), Florida Statutes. Petitioners requested a formal administrative hearing pursuant to Sections 163.3187(3)(a) and 120.57, Florida Statutes. On February 1, 2000, Petitioners filed an Amended Petition for Administrative Hearing. Pursuant to the Amended Petition, Petitioners alleged that the Amendment is inconsistent with the requirements of Sections 163.3177 and 163.3180 of the Act, the TCRPC's strategic regional policy plan, and portions of Chapter 9J-5, Florida Administrative Code. Petitioners also alleged in the Amended Petition that the Amendment is inconsistent with Sections 163.3161, 163.3167, 163.3194, and 163.3244 of the Act. These allegations are not relevant to the determination of whether the amendment is "in compliance" as those terms are defined in the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Commission enter a final order finding that the Amendment is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of February, 2001. COPIES FURNISHED: Virginia P. Sherlock, Esquire Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995 David A. Acton Senior Assistant County Attorney Martin County Administration Center 2401 South East Monterey Road Stuart, Florida 34996-1197 Raymond W. Royce, Esquire Carrie Beth Baris, Esquire Holland & Knight LLP 625 North Flagler Drive, Suite 700 West Palm Beach, Florida 33401-3208 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issue is whether plan amendments CPA 10-4 and CPA 10-5 adopted by Martin County (County) by Ordinance Nos. 881 and 882 on August 10, 2010, are in compliance.
Findings Of Fact The Parties The County is a political subdivision of the State and has the responsibility of administering its Comprehensive Plan (Plan). It adopted the two amendments being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The parties have stipulated that Petitioners all reside or operate a business in the County, and they submitted oral or written comments to the County during the adoption process. Intervenors are limited liability corporations owned by King Ranch Florida Operations, LLC, an agricultural operation with offices in Florida and Texas. Intervenors own the subject property, which is more commonly known as Sunrise Groves. The parties have stipulated to the facts necessary to establish that Intervenors are affected persons. The Plan Amendments The amendments concern a 1,717-acre parcel of land located immediately west of, and adjacent to, Interstate 95 (I-95) in the northern part of the County. Southwest Martin Highway (also known as County Highway 714), which runs in an east-west direction, is situated on the south side of the parcel, while the site is separated by a canal on its northern boundary from the City of Port St. Lucie in St. Lucie County. Aerial photographs reflect that undeveloped land lies to the west of the property. See Intervenors' Exhibit 18. At least four large and very urban Developments of Regional Impact (DRIs) have been approved in Port St. Lucie, immediately north of the parcel, including a planned regional mall on the immediate northern boundary of the parcel. From the mid-1960's until the mid-2000's, the parcel was an active orange grove. Due to damage from citrus canker and "greening," which is an incurable, aggressive, and deadly virus affecting citrus plants, the parcel has become a literal wasteland of dead orange trees. The property is now desolate and unprofitable and cannot be converted to any other profitable or feasible agriculture use. Around the same time that the citrus grove was being destroyed, the County commissioned Urbanomics, Inc., and Leak- Goforth Company, LLC, to perform an economic study to determine how the County could better compete in the Florida market. In November 2006, the results of that study were released. See Intervenors' Ex. 11. The study indicated that the County should be pursuing various types of industrial development, with a focus on recruiting firms and institutions with 50 to 100 or more employees, or those that have capabilities and are on pace to reach this minimum employment threshold in three to five years. The study also concluded that in order to accommodate the types of industries that the County would need to pursue, it would need more space designated for industrial use. Based upon the study, the County has adopted policies in the Economic Element of the Plan regarding future economic development in the County. See Joint Ex. 1, Ch. 15. On September 30, 2009, Intervenors applied to the County for a new land use designation to be added to the Plan, allowing industrial uses to be combined with commercial and agricultural uses on their parcel of land. See Intervenors' Ex. 2. Intervenors also applied for a change in the land use category on their property from Agricultural to the new land use category. The re-designated parcel would become a "freestanding urban service district," which requires that the property be served by water and sewer services from a regional supplier rather than individual wells, septic tanks, or on-site package treatment plants. It would be one of two freestanding urban service districts (USDs) in the County.1 When Intervenors initially applied to the County for the amendments, the proposed future land use category was titled "I-95 Agricultural Technology & Employment Center." As the amendment evolved in subsequent months, however, a decision was made to shorten the name to something less cumbersome, which ultimately became "AgTEC," an acronym for Agriculture and Targeted Employment Center. As proposed, the AgTEC designation was significantly different from other land use designations in the Plan in a number of ways. AgTEC is a "site-specific" land use designation, tailored for a specific parcel of property, the 1,717 acres owned by Intervenors. It allows for agricultural uses to continue indefinitely on 817 acres of the parcel, if a viable agricultural use can be found in the future. It also permits new uses on a maximum of 900 acres of the parcel, but limited to certain "Primary Targeted Employment" uses and others which are ancillary to them. Residential is not an allowable use. Finally, it imposes a strict requirement that all future development of the parcel must be subject to a Planned Unit Development (PUD) approval process. On April 14, 2010, the Board of County Commissioners (Board) approved the application and voted to transmit Amendments 10-4 and 10-5 to the Department. On June 25, 2010, the Department issued its Objections, Recommendations, and Comments (ORC) report recommending that the two amendments not be adopted unless additional data were supplied and certain revisions made. See Petitioners' Ex. 4B, pp. 26-47. The Department's objections related to urban sprawl, a failure to demonstrate need, transportation deficiencies, lack of access to public facilities, and a failure to preserve agricultural lands. On July 17, 2010, Intervenors submitted a response to the ORC report, which included an update to the original application addressing the Department's concerns. They also provided additional data and analysis concerning the structure of the County's economy; location quotient data (ratios by type of economic activity in the region), which were consistent with a report submitted by Dr. Nicholson, an economist employed by Intervenors; and environmental information. On August 10, 2010, by a 3-2 vote, the Board adopted the FLUM amendment as Ordinance No. 881 and a revised version of the text amendment as Ordinance No. 882. See Joint Ex. 4 and 5. On October 6, 2010, the Department issued its notice of intent to find the amendments in compliance. See Joint Ex. 6. On October 7, 2010, the Department published notice of its intent to find the amendments in compliance in The Stuart News. Petitioners then timely filed their Petition, as later amended. Ordinance No. 881 refers in its title to a parcel of land known as "Sunrise Groves," which is described in the main body of the ordinance as 1,717 acres of land located west of I-95 and north of Southwest Martin Highway. The site is also defined by legal description attached as Exhibit A to that ordinance. See Joint Ex. 4, pp. 4 and 5. The title indicates that the land designation on the FLUM is being changed from Agricultural to AgTEC. Ordinance No. 882 also refers in its title to a parcel of land as "Sunrise Groves," and that a new site-specific land use category, AgTEC, is being created for that parcel. The text amendments, which are attached as Exhibit A, provide further site-specific indicators of where the new land use designation applies. See Joint Ex. 5, pp. 5-17. They describe an area that is 1,717 acres in size, state that AgTEC uses may be no closer than 300 feet from any existing residential use, and require provision of the right-of-way for a multi-lane arterial north-south roadway "connecting Martin Highway [in Martin County] to Becker Road [in adjoining St. Lucie County], providing the opportunity for a regional parallel reliever road to I-95 . . . ." Id. at pp. 6 and 7. This roadway (an extension of Village Parkway) is specifically depicted on a conceptual map showing the general location where it is to be built. See Joint Ex. 5, AgTEC Long Range Transp. Map. Petitioners contend that the text amendment does not clearly identify the location of the property or Intervenors' parcel as the subject of the amendments, partly because the ordinance title and conceptual map will not become a part of the Plan. However, Ordinance Nos. 881 and 882 clearly refer to the same specific parcel of land intended for designation as "AgTEC" and subject to the requirements of the AgTEC future land use category. When reading the two ordinances, a reasonable person would not be confused as to which property designated for the new land use category applies. The more persuasive evidence supports a finding that no other parcel of land within the County could be similarly designated as "AgTEC," absent an amendment to the AgTEC future land use category in the Plan. Petitioners' Objections As narrowed by their stipulation and the withdrawal of certain issues at hearing, Petitioners contend that the amendments are internally inconsistent with other provisions within the Plan; that the amendments encourage urban sprawl; that the amendments impermissibly convert land designated for agricultural purposes to other uses; that the text amendment is based upon the Plan that was in effect prior to the Evaluation and Appraisal Report (EAR) amendments that became effective in January 2011, thereby creating internal inconsistencies; that there is no demonstrated need for the amendments; that the amendments are not supported by adequate data and analysis; and that the amendments fail to provide meaningful and predictable standards for implementation. A contention that the text amendment includes unauthorized self-amending language is not addressed in Petitioners' proposed recommended order and is presumed to be abandoned. Internal Inconsistency Petitioners contend that the amendments are internally inconsistent with other FLUE provisions in numerous respects. Some of these consistency arguments are based on the fact that the text amendments in Ordinance No. 882 use the numbering system for the goals, objectives, and policies of the FLUE that was in effect when Ordinance No. 882 was adopted on August 10, 2010, rather than the new numbering system that became effective on January 3, 2011.2 As described in Endnote 2, infra, the new numbering system was adopted by the County during the months- long process of amending the Plan during the EAR process. The new text added to the Plan during that time-frame will simply be re-numbered by the Municipal Code Corporation, which publishes the codified version of the Plan, to conform to the new numbering system. This is consistent with the publisher's authority under Part 6 of Ordinance No. 882, which states in relevant part: "CODIFICATION. The word 'ordinance' may be changed to 'article[,]' 'section[,]' or other word and the sections of this ordinance may be renumbered or re-lettered." Joint Ex. 5, p. 3. This codification provision is found in every ordinance adopting a text amendment. By way of example, the content in section 4.4.g.1.n(3) in Ordinance No. 882 (on page 17 of Joint Exhibit 5) will be recodified in new policy 4.7A.14, which replaces the old section. Except for the new number, the content of both provisions is the same. See Joint Ex. 1, Ch. 4, p. 50. There was no evidence that the new EAR- based amendments create an inconsistency with these amendments. Petitioners also contend that an internal inconsistency in the Plan arises due to two references to "I-95 AgTEC" in Ordinance No. 882 (on pages 7 and 11), and a single reference to "AgTech" in Ordinance No. 881 (on page 2). They also argue that the "I-95 AgTEC" category lacks "meaningful and predictable standards for implementation" as a land use designation if it is distinct from the "AgTEC" category. However, they failed to present any evidence that Intervenors or the County intended to create two different future land use categories. The evidence supports a finding that both references to "I-95 AgTEC" in Ordinance 882 were merely "vestigial" references (i.e., references made during an early stage of the amendment process) to the initial title proposed for the land use category when Intervenors first applied to the County. The evidence shows that the County staff simply missed the two references when it conducted an electronic "find and replace" search intended to convert all references in the ordinance to "AgTEC" before presenting the final draft to the Board for adoption. Except for these two references to "I-95 AgTEC," the ordinance consistently uses the "AgTEC" title for the land use designations. Both references are merely scrivener's errors. The single reference to "AgTech" in Ordinance No. 881 is simply a misspelling of the proper title of the new future land use category to be applied to the property. The simultaneous adoption of the two ordinances, the application for both ordinances by the same applicant, and the obvious similarity between the correct spelling and the misspelling support a finding that the use of "AgTech" in Ordinance No. 881 is also a scrivener's error. Historically, after securing Board approval, the staff has been authorized to correct errors in the FLUM without a formal amendment; however, the County Growth Management Director could not recall a situation where a scrivener's error in a text amendment had occurred and was unsure as to how that type of error would be corrected. More than likely, these scrivener's errors will be corrected by another plan amendment. In any event, these non-substantive, minor scrivener's errors do not render the amendments not in compliance. Petitioners further contend that the amendments are inconsistent with the County's stated policy of preserving agricultural lands. See Joint Ex. 1, FLUE policy 4.12A.1. However, the amendments preserve almost one-half of the land (817 acres) for agricultural purposes even though the entire parcel is now unproductive. Petitioners also argue that the amendments are internally inconsistent with FLUE Objectives 4.13A.1.(2)(a) and (b), which provide that the conversion of agricultural land to another land use may be done only when it does not affect the hydrology or productive capacity of adjacent farmlands, and only when it is a "logical and timely extension of a more intense land use in a nearby area." As noted above, there are four approved DRIs immediately north of the parcel in the southwestern quadrant of Port St. Lucie, including a large regional mall on the parcel's northern boundary. The new land use is a logical extension of a more intense land use in a nearby area. Also, there is no evidence that the new land use will affect the hydrology or productive capacity of adjacent farmlands. To the contrary, the evidence shows that any adjacent agricultural areas to the west are protected by a requirement that 75 percent of the common open space be along the western border. It is fairly debatable that the amendments are consistent with the cited policies. Petitioners contend that the amendments are internally inconsistent with a series of FLUE policies that, in general terms: (a) require the availability of services and facilities before expanded urban development may be approved (FLUE policies 4.1B.2., 4.1B.3., and 4.13A.1.(b)); (b) prohibit any regional utility from serving customers outside the Primary Urban Service District (PUSD) and Secondary Urban Service District (SUSD) (FLUE policies 4.7A.2.-4., 4.7A.10., 4.7B.8.(6)-(7), and 4.7B.9.); and (c) prohibit urban development outside the PUSD (FLUE policy 4.13A.9.). Although couched differently, the essence of the argument is that the amendments allow development in an area that is not presently within any PUSD or SUSD, thereby creating an issue of internal inconsistency with other provisions of the Plan. The existing Plan establishes two main types of "urban service districts" in the County: a PUSD and a SUSD. See Joint Ex. 1, Ch. 4. There is an "eastern" PUSD that includes most of the unincorporated coastal area of the County, surrounding the Cities of Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park. Adjacent to the eastern PUSD is a much smaller eastern SUSD. See Joint Ex. 3. Several miles west of the boundaries of the eastern PUSD and SUSD there is a smaller "Indiantown" PUSD that consists of the unincorporated inland area of the County known by that name, and an adjacent Indiantown SUSD. Id. The County's purpose for having USDs is to "regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in the Plan." Joint Ex. 1, FLUE Goal 4.7. The provision of "urban public facilities and services" is generally limited by the Plan to the land inside the County's USDs. The term "public urban facilities and services" is defined as "[r]egional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." Joint Ex. 1, Ch. 2, § 2.2(127). The Plan also contains numerous provisions that establish a broad prohibition against all industrial uses and most commercial uses on land outside the County's USDs. The Plan expressly provides for the creation of so- called "Freestanding Urban Service Districts" within the County. See Joint Ex. 1. Ordinance No. 882 includes an amendment to FLUE section 4.4.M.1.h.(5) to establish that land designated as AgTEC shall be a freestanding USD. See Joint Ex. 5, p. 8. It also amends FLUE section 4.4.g.1.n.(3) to include land designated AgTEC as one of several enumerated "exceptions to the general prohibitions on development outside of the [PUSD]." Id. at p. 17. This means that the amendment creates its own exception from restrictions in the Plan that might otherwise apply to development outside the PUSD. Therefore, the prohibitions against a regional utility serving a customer outside the PUSD and SUSD, or expanding urban development outside a PUSD, do not apply. As noted above, these amended section numbers will be renumbered in the codification process to conform to the numbering in the new EAR-based amendments. However, the content remains the same. See Finding of Fact 18, supra. Petitioners presented no evidence that the freestanding USD for the AgTEC-designated land would lack the urban public facilities and services that would be necessary under the Plan. Utility services do not have to be physically available at the property boundary before a change in land use can be approved; they must only be planned or programmed. To be programmed, the services may be identified in the capital improvement element of the Plan or appear in a DRI approval. According to Mr. Dulin, County Senior Planner, the utility services for the parcel appear in "one or a number of the [DRIs] approved in the southwestern quadrant of Port St. Lucie." This type of arrangement for services is not unusual, as the County now provides services to some areas in St. Lucie County, while Port St. Lucie and St. Lucie County provide services to certain areas in the County. The evidence shows that Port St. Lucie has the capacity to meet the requirements of the development, and that those services will be paid for by the developer, and not the County. At the amendment stage, the lack of a formal written agreement between the developer and Port St. Lucie is of no concern, as one is not required until the Intervenors seek a development order from the County. It is fairly debatable that the amendments are consistent with the FLUE. Urban Sprawl Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 "primary indicators" of urban sprawl to be considered in the review of plan amendments to determine whether the presence of multiple indicators "collectively reflect a failure to discourage urban sprawl." Fla. Admin. Code R. 9J- 5.005(5)(d). Petitioners' expert, Charles G. Pattison, contends that, with the exception of four indicators (1, 4, 11, and 13), all other indicators are triggered by the changes effectuated through the amendments being challenged. However, indicator 3 was not raised in the Amended Petition or stipulation. Therefore, only the remaining eight indicators will be addressed. See Heartland Envtl. Council, Inc. v. Dep't of Community Affairs, Case No. 94-2095GM (Fla. DOAH Oct. 15, 1996), modified in part, Case No. DCA-96-FOI-GM (Fla. DCA Nov. 25, 1996), 1996 Fla. ENV LEXIS 163 at *63. Indicator 2 requires a determination as to whether the amendments promote, allow, or designate "significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Fla. Admin. Code R. 9J-5.006(5)(g)2. As noted above, large and very urban DRIs have been approved in neighboring Port St. Lucie just north of Intervenors' property, including a planned regional mall on the immediate northern boundary of the property. Also, some of the infrastructure for these developments has been constructed immediately north of Intervenors' parcel, to which the infrastructure on Intervenors' parcel is required to connect. It is unreasonable to ignore this development simply because it lies within an adjacent local government, rather than viewing the existing and approved development in the area as a whole. A more reasonable approach is to consider the existing urban areas immediately to the north of the parcel. Indicator 5 requires an analysis to determine whether the amendments fail to "adequately protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils." Fla. Admin. Code R. 9J-5.006(5)(g)5. Because the parcel is bordered on the east by I-95 and on the north by DRIs in Port St. Lucie, the only areas of concern affected by this indicator would be to the south or west of the parcel. Petitioners failed to prove, however, that the AgTEC requirements for buffers on the east and south boundaries and required open space on the western border of the site constitute inadequate protection for any adjacent agricultural areas or activities within the meaning of the rule. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. See Fla. Admin. Code R. 9J-5.006(5)(g)6.-8. Urban sprawl is generally indicated when new public facilities must be created to serve a proposed use. As noted above, the provider of water and sewer services to Intervenors' parcel (Port St. Lucie) has ample capacity to meet its projected needs and the capability of doing so from adequately sized lines located within a quarter of a mile from the parcel. Also, there is no credible evidence that there will be a lack of transportation infrastructure to meet the demand expected to be placed on the parcel. Indicator 9 requires an analysis to determine if the amendments fail "to provide a clear separation between rural and urban uses." Fla. Admin. Code R. 9J-5.006(5)(g)9. Through the use of setbacks, buffers, and other site design criteria, it is at least fairly debatable that the amendments create a sufficiently clear separation between the industrial/commercial uses that would be allowed and any rural uses to the south and west of the site. Petitioners did not identify any adjacent rural uses that would require such separation. Indicator 10 requires that the amendments do not discourage or inhibit infill development or the redevelopment of existing neighborhoods and communities. While Petitioners pointed out that there are other parcels in the County currently designated for industrial use, those parcels are either too small or too scattered to attract the types of industrial development desired by the County, which are described in the Economic Element of the Plan. Further, there was no evidence that the other smaller and scattered parcels would be adversely affected by the large-scale development envisioned on the AgTEC land. Finally, indicator 12 requires an analysis to determine if the amendments result "in poor accessibility among linked or related land uses." Fla. Admin. Code R. 9J- 5.006(5)(g)12. The evidence shows that the AgTEC requirements for new transportation infrastructure, coupled with the existing access from two adjacent interchanges on I-95, provide ample accessibility for the parcel and other related land uses. In summary, it is at least fairly debatable that none of the primary indicators of urban sprawl at issue are triggered by the amendments. Other Issues Petitioners assert that Intervenors failed to demonstrate a need for commercial or industrial land outside the USDs. They also contend that the economic study performed by Dr. Nicholson failed to consider other vacant parcels of land designated for industrial use, including large amounts of acreage in Palm City and Indiantown. However, Dr. Nicholson established that of the 2,590 acres of available industrial land in the County, the vast majority of these sites are small, less than five acres in size, and are inadequate. He also established that the County lacks any well-planned, amenity- oriented industrial, office, or business parks, which would be the type of development contemplated on Intervenors' parcel. It is fairly debatable that the needs analysis submitted by Intervenors is adequate to support the amendments. Although raised as an issue, there was no evidence that the amendments are internally inconsistent with any provisions within the Economic Element of the Plan. All other contentions not specifically addressed herein have been considered and rejected. Improper Purpose Because they did not substantially change the outcome of the Department's determination that the amendments are in compliance, Petitioners are non-prevailing adverse parties. See § 120.595(1)(e)3., Fla. Stat. Therefore, it is necessary to make a determination as to whether Petitioners participated in this proceeding for an "improper purpose," as that term is defined in section 120.595(1)(e)1. Petitioners generally alleged that the amendments were internally inconsistent with other Plan provisions in numerous respects, that they encouraged urban sprawl, that they contain substantive errors that cannot be corrected in this proceeding, and that there is no needs analysis to support the amendments. Each of these contentions was ultimately found to be without merit, and contrary evidence on these issues submitted by the County and Intervenors was credited. However, when taken as a whole, the record does not support a finding that Petitioners participated in this proceeding "primarily" to harass the applicants, increase the cost of litigation, or cause them unnecessary delay. The Amended Petition was not frivolous.
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 amendments adopted by Ordinance Nos. 881 and 882 are in compliance. DONE AND ENTERED this 5th day of May, 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 5th day of May, 2011.
The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, 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 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue The issue to be resolved in this portion of this power plant site certification proceeding is whether the site for the proposed Seminole Generating Station Unit 3 Project is consistent and in compliance with the applicable land use plans and zoning ordinances of Putnam County, Florida, pursuant to Section 403.508(2), Florida Statutes.1
Findings Of Fact SECI is a member-owned generation and transmission electric cooperative. SECI supplies power to ten electric cooperative members throughout Florida. These cooperatives primarily serve rural areas of the State. SECI's members currently serve approximately 1.6 million customers throughout the State. SECI's headquarters are in Tampa, Florida. SECI first came into existence in 1948 under the Federal Rural Electrification Act to provide electric power to rural areas. Initially, SECI purchased power from other utilities for its individual members. In the 1970s, in response to the oil embargo, SECI's member cooperatives determined it was in their best interest to build their own power supply. SECI then licensed, constructed, and commenced operation of the coal- fired power plant near Palatka, in Putnam County. SECI also has a power plant in Hardee County, Florida. These two power plants allow SECI to provide approximately 70 percent of the power for the member cooperatives, while purchasing 30 percent of the power needs of the member cooperatives from other utilities. The Site is located in the unincorporated area of the county. It is approximately five miles north of the city of Palatka. The St. Johns River is located to the south and to the east of the power plant site. The Site is a 1,300 megawatt facility located on a site comprised of two parcels of land totalling approximately 2,000 acres in size. The larger parcel of the site, which contains the existing coal-fired Units 1 and 2 and almost all related facilities, began operation in 1984. Other existing facilities on the larger parcel include: two boiler buildings and the turbine generator buildings; precipitators, scrubber modules, and a combined flue stack; two natural draft cooling towers; a coal yard for unloading and storage of coal; an A-frame storage building for limestone used in the scrubber process; a rail spur and rail loop used to bring coal into the Plant site; and a coal conveyor to bring the coal from the coal yard to the boilers. The new Unit 3 will be constructed on this larger parcel. The balance of the larger parcel of the Site is in pine flat woods. North and northwest of the power plant is the Lafarge wallboard facility, where combustion by-products from the existing units are converted into synthetic gypsum for the manufacture of wallboard. The Site also includes a smaller parcel of approximately 4.5 acres located approximately 1,000 feet to the south along the St. Johns River. An intake pump house is located on this parcel to pump water from the river for use by the existing units. Currently, there are four underground pipes (one of which is not in use) and an underground duct bank with electrical conduit. The underground pipes and duct bank continue from the smaller parcel to the larger parcel through an existing privately-granted easement. The Site and the existing two steam electric generating units, Units 1 and 2, were certified in proceedings under the PPSA that took place in 1978 and 1979. In 1978, when the Site initially was being developed and certified under the PPSA, Putnam County was in the process of developing its Comprehensive Plan and its Future Land Use Map (FLUM). However, the County had zoning regulations in place, and it and rezoned the larger and smaller parcels as a PUD for the purpose of an electrical generating facility. During the 1978 land use hearing, which also addressed the pipeline easement which provides access to the St. Johns River, the Hearing Officer concluded that the Site was consistent and in compliance with the land use plans and zoning regulations in effect at that time. The Siting Board subsequently adopted the Hearing Officer’s conclusions regarding land use and zoning issues. In its Order Relating to Land Use and Zoning, entered on March 21, 1979, the Siting Board determined that the Site, including the intake pump house and pipeline easement, was consistent and in compliance with the land use plans and zoning ordinances of Putnam County. In the Order Relating to Land Use and Zoning, the Siting Board also ordered the “responsible zoning and planning authorities . . . to refrain from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site.” IN RE: Seminole Electric Cooperative, Inc., Application for Power Plant Site Certification, Putnam County, DOAH Case No. 78-1388, 1979 Fla. ENV LEXIS 10 (Siting Board Mar. 21, 1979. Sierra Club was a party to the original site certification proceeding and is bound by its determinations on consistency with land use and zoning. SECI is proposing to construct a new Unit 3 at the Site designed for a capacity of 750 megawatts. The new unit and related facilities are much like the existing facilities and will utilize many of the existing onsite facilities. Like the two existing units, the new Unit 3 will burn coal as its primary fuel with up to 30 percent petroleum coke. The new unit will consist of a turbine generator building, a new boiler building, precipitators, scrubber modules, and a wet electrostatic precipitator. A single flue gas stack will serve the new unit. A new mechanical draft cooling tower will also be constructed on the site to serve the new Unit 3. The new cooling tower will have a lower profile than the existing natural draft cooling towers. The existing coal yard will be expanded for the new unit and additional facilities will be added in the limestone scrubber area to handle the additional gypsum that will be created. Construction for the new Unit 3 is planned to begin in late 2008. As planned, the new unit is expected to start up in May 2012. SECI's Unit 3 project will integrate the new unit into the existing plant facilities. The existing administration building and parking lot will support the new unit. SECI will continue to use the existing rail spur, including for the delivery of coal and construction materials. The existing switchyard and transmission area will be utilized for the new unit. There will be no new off-site electrical transmission lines for the Unit 3 Project. The existing plant access off Highway 17 will be improved to enhance access for turning vehicles into the site. As indicated, the existing units are supplied with cooling and other service water from the St. Johns River. SECI proposes to utilize the existing pump house and to install an additional water pipeline and duct bank within the easement to supply primarily cooling water and also other service water (primarily for bottom ash handling and for the scrubber system) to the proposed Unit 3. There will be some enhancements to the pumps and motors inside the pump house to increase the capacity of water withdrawals. Otherwise, there will be no changes to the existing pump house for the new Unit 3 project. The cooling and other service water for Unit 3 will be conveyed to the main power plant site by an additional 36-inch pipeline to be placed underground and within the existing private easement. As indicated, the existing easement was created in 1978 and the existing pipelines were installed as part of the development of Units 1 and 2. A second duct bank will also be placed in the existing easement. There will be no facilities constructed above the ground surface within that easement. The easement will be restored to its existing condition after the new water pipeline is installed. The existing land uses adjacent to the Site are primarily undeveloped land. Residential areas along the St. Johns River are the closest development to the Site, with the exception of the Lafarge gypsum plant located adjacent to the larger parcel of the Site. The closest communities are Bridgeport, which is located approximately 3.5 miles to the east, and Bostwick, which is located 2.5 miles to the north. The pattern of development in the area since the existing Units 1 and 2 began operation in 1984 has been single family residential development located along the river and the construction of the Lafarge wallboard plant. With the exception of the wallboard plant, the areas between that residential corridor and the Site, as well as in all four directions around the site, continue to be undeveloped land. There are two existing homes located near the Site. One home is located approximately one mile south of the proposed Unit 3 stack, and another home is approximately one mile west of the Plant site. There is existing power plant infrastructure between the Unit 3 site and those two nearest residences, including the large natural draft cooling towers, wastewater treatment equipment, and other associated facilities. The addition of the proposed Unit 3 would be compatible with the existing land uses at and near the Site. The new Unit 3 will have very similar operating characteristics to the existing units, but will use additional air emissions controls. The residential development along the St. Johns River has continued while Units 1 and 2 have operated. The new Unit 3 will be able to co-exist with existing land uses in that the new Unit 3 is not expected to have a significant adverse impact to nearby residential development. When its Comprehensive Plan with FLUM was adopted (after the Siting Board’s March 1979 Order Relating to Land Use and Zoning), the County designated the larger parcel in the Industrial Future Land Use category to recognize the existing Units 1 and 2 at the site. Electrical power plants are an allowed use in the Industrial future land use category. Approximately two-thirds of the smaller parcel of the site fronting on the St. Johns River was designated Agricultural II and approximately one-third (the part contiguous to the river) was designated Rural Residential under the County’s Comprehensive Plan and FLUM. The existing pump house is located on the Rural Residential part of the parcel. The underground water pipes and electrical duct bank lead from the pump house towards the larger parcel of the Site, which is designated Industrial. The existing pump house and underground water pipes and electrical duct bank are allowed uses in both the Agricultural II and in the Rural Residential future land use districts, as a Type 2 Community Facility. The underground water pipes and electrical duct bank proceed from the smaller parcel to the larger parcel of the Site through a privately-granted easement across property designated Agricultural II on the County’s FLUM. The County’s Comprehensive Plan does not prohibit such facilities in that land use designation. The lands in the pipeline easement are zoned Agricultural. Such facilities also are not precluded in that zoning district. The installation of the existing underground water pipes and electrical duct bank within the easement was approved by Putnam County at the time of the original site certification proceeding for the Site. In October 1978, the Putnam County Code Administrator stated that the County’s zoning for the lands covered by the easement to the St. Johns River did not preclude the use of the easement for the pipeline installation. On January 10, 2006, the Putnam County Commission adopted Ordinance 2006-02, which amended the original PUD zoning approval for the Site. The amended PUD zoning ordinance covers both parcels of the Site. This amended PUD zoning ordinance allows the placement of Unit 3 and its related facilities within both parcels of the Site. The PUD zoning ordinance incorporates a Development Agreement between Putnam County and SECI, which addresses the Unit 3 facilities proposed to be constructed by SECI. As part of the PUD zoning amendments, the Putnam County Board of County Commissioners reviewed SECI's Unit 3 Project for consistency with the County’s Comprehensive Plan. The Commission found the Project to be consistent with the County’s Comprehensive Plan. More specifically, Ordinance No. 2006-02 found that SECI’s proposed amendment to the PUD zoning was “consistent with the Comprehensive Plan,” would “not adversely affect . . . orderly development,” met “the requirements of the Land Development Code,” and “will not be placed in agricultural lands.” (SECI Exs. 12B, 13A, and 13B) The Development Agreement incorporated into Ordinance No. 2006-02 acknowledges that the existing pipeline easement “is not a part of the PUD.” The Development Agreement clearly differentiated between underground pipelines and other aspects of the Unit 3 Project: The existing pipeline easement, which is not a part of the PUD, runs across property zoned for agricultural uses and falling [sic] within the Agricultural II future land use category. Neither the County Comprehensive Plan nor the Land Development Code precludes the repair, replacement or addition of underground water pipes necessary to plant operations. The underground pipes, and the pipeline easement, were part of the original certification and any modifications required to accommodate Unit 3 will be reviewed as part of the site certification process. Subject to site certification under the PPSA, Unit 3 will be constructed primarily east of, but integrated with, existing Units 1 and 2 such that any new development activity will fall within that portion of Parcel 1 designated under the Industrial future land use category. But for the existing pump house, Parcel 2, which is part of the PUD, will remain undeveloped. Pumps within the existing pump house will be replaced or upgraded and existing underground water pipes may be replaced or upgraded, and new underground pipes may be added, but no new uses or structures are intended for Parcel 2. The pipeline easement – which is not part of the PUD – will remain undeveloped although pipes may be repaired, replaced (or additional pipes installed) underground between Parcels 1 and 2. Although no new uses or above-ground structures are anticipated on Parcel 2 or the pipeline easement, both are considered to be part of the electrical power plant to be certified under the PPSA and will be reviewed along with Parcel 1 throughout the State site certification process to which the COUNTY shall be a party. (SECI Ex. 13B, pp. 5-6) Sierra Club participated in the Putnam County January 2006 zoning hearing on the amended PUD zoning for the Site. The Sierra Club did not object to the adoption of the amended PUD zoning ordinance at that hearing. No party has appealed the Putnam County Commission’s amended PUD zoning ordinance for SECI's Unit 3 Project. Sierra Club is now bound by the determinations of land use and zoning consistency in these prior proceedings, as well as in the original site certification proceeding. Putnam County entered into a Stipulation with SECI which addresses land use and zoning issues. In the Stipulation, Putnam County acknowledged that the adoption of Putnam County Ordinance 2006-02, which amended the PUD zoning for the Site, and the approval of the Development Agreement referenced in that Ordinance by the Putnam County Board of County Commissioners, both confirm that the Site, including the proposed Unit 3 and the associated facilities, are consistent and in compliance with applicable land use plans and zoning ordinances as required under Section 403.508(2), Florida Statutes. Despite its participation in both the 1979 site certification proceeding and the 2006 re-zoning process, Sierra Club nonetheless takes the position in this case that the pump house and cooling water pipeline are “industrial” facilities which are not consistent with the future land use designations for the lands occupied by those facilities. Putnam County has adopted a definition of “development” that provides in pertinent part: The following operations or uses shall not be taken for the purposes of this act [the County’s land development code] to involve ‘development’: (b) Work by any utility and other persons engaged in the distribution or transmission of gas or water, for the purpose of inspecting, repairing, redoing, or constructing on established rights-of-way any sewers, mains, pipes, tables, utility tunnels, power lines, towers, poles, tracks or the like. Putnam County’s Land Development Code, Article 12, Section 12.01.01.a.2. This definition of “development” also applies to actions “seeking legislative action to amend this Code and the Comprehensive Plan” of Putnam County. Id. The County’s definition of “development” therefore excludes the additional cooling water pipeline and duct bank within the established easement containing similar pipelines and duct bank between the principal power plant site and the riverside pump house. No Comprehensive Plan amendments or other zoning approvals would be required for those pipelines and duct banks as they are not “development” subject to the plan or the local land development code. Underground pipelines and electrical duct banks such as those proposed for SECI's Unit 3 project are not typically regulated as a land use. All developed areas have water and sewer pipelines that radiate through different zoning districts and that serve the users that subscribe to such water and sewer service. The practical effect of regulating such facilities as “development” could result in a spider web of land use and zoning classifications running wherever those facilities are placed. Even if it were to be concluded that the underground water pipes and electrical duct banks were "development" subject to Putnam County’s Comprehensive Plan, SECI's expert land planner testified without contradiction that they would be considered a Type 2 community facility as defined in the Comprehensive Plan: "Type 2 [Community Facilities and Services] are light infrastructure facilities, including but not limited to, water wells, water tanks, sewage pump stations, electrical substations, and water and wastewater treatment plants with a capacity of less than 500,000 gallons per day." Type 2 community facilities are allowed in all eleven of Putnam County’s Future Land Use categories. As indicated, the smaller parcel of the Site is zoned as a PUD that allows the activities proposed. The easement for the underground water pipes and electrical duct banks is zoned for Agriculture zoning. As indicated, use of the easement for the underground facilities has been approved by the County since 1978. Unrebutted testimony demonstrated that there will be no physical changes to the pump house itself, but only replacement of the pump inside with a larger one with more capacity, and that the additional underground water pipe and duct bank will not be visible, as the land will be restored to current conditions. Sierra Club offered no evidence contradicting Putnam County’s interpretation of its own Comprehensive Plan land development regulations; offered no evidence as to how the community could be adversely affected by the continued use of the pump house, with larger pump, and the addition of underground water pipes and duct bank in the existing pipeline easement; and offered no evidence that these facilities for the pumping and conveyance of river water to the plant site constitute “industrial” uses under the land use plans and zoning regulations of Putnam County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board find, pursuant to Section 403.508(2), Florida Statutes, that the site for SECI’s Unit 3 and its related facilities, to be located in Putnam County Florida, as described by the evidence presented at the hearing, are consistent and in compliance with existing land use plans and zoning ordinances and site-specific zoning approvals of Putnam County. DONE AND ENTERED this 31st day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2006.
The Issue Whether the Florida Department of Transportation (FDOT) properly denied application(s) for an advertising sign permit.
Findings Of Fact On September 27, 2005, Petitioner Lamar submitted two permit applications (Nos. 55595 and 55596) to FDOT for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 85 (SR 85), 200 feet (or .042 miles) south of Barnes Road in Okaloosa County, Florida. SR 85 is a Federal-aid primary highway. (See Stipulated Facts 1 and 4.) The proposed sign structures met the size, height, and spacing requirements of Section 479.07, Florida Statutes. (See Stipulated Fact 3.) The proposed sign location is in an unincorporated area of Okaloosa County, Florida. (See Stipulated Fact 5.) Okaloosa County is the only local entity involved herein. The 42.5 acre parcel of land for the proposed billboard has significant frontage on SR 85, north of Crestview, Okaloosa County. A residence is located on a portion of the parcel. The permit application form used by Petitioner was composed and authorized by FDOT. Petitioner's submitted application was complete, and the appropriate fee was paid to FDOT. (See Stipulated Fact 2.) Upon request, FDOT provides a published "Instruction" pamphlet to assist applicants for outdoor advertising sign permits. Pages 12-13 thereof provide, in pertinent part, as follows: Land Use/Zoning: Outdoor advertising signs must be located in areas where the land use category allows properties which lie within 660 feet of the controlled road and which are within the contiguous land use designation area to be developed with primarily commercial or industrial uses. This information is found in the Land Development Regulations and on the Future Land Use Map of the City or County’s Comprehensive Growth Management Plan. The City or County or other local government must certify that the current zoning (Land Development Regulations) and the Future Land Use Map designation allow for commercial/industrial uses and that outdoor advertising signs are allowed for that designation. When the Land Development Regulations [zoning] or the Future Land Use Map do not specifically designate the parcel as commercial or industrial, but allow for multiple uses on the parcel, including commercial or industrial, a “use test” will be employed to determine whether an outdoor advertising permit may be issued. The use test requires that there be a minimum of three (3) conforming businesses within 1600 feet of each other, and that the sign be on the same side of the highway and within 800 feet of one of the businesses. The Department will not approve an outdoor advertising sign permit when local regulations prohibit outdoor advertising at the proposed location. (Emphasis supplied.) In preparation of Petitioner’s application(s), Chad Pickens, Petitioner’s Lease Manager, read FDOT’s Instruction pamphlet as guaranteeing Petitioner a “use test” if either the County land use map or the zoning for this parcel provided for mixed or multiple uses. He conducted extensive site location and ownership searches; made contacts with the potential lessor; submitted photographs of three businesses within 1600 feet of the proposed outdoor advertising sign location; filled out the permit application; proceeded to the appropriate Okaloosa County government officials for County approval; surveyed and staked out the proposed outdoor advertising sign location; and took photographs of the proposed site. He then submitted this information on FDOT-approved forms, along with a letter of authorization and the application fee. Petitioner Lamar leased the property site from the owner, with no lease payments due from Petitioner to the landowner unless FDOT approved its sign permits. At the time of the application, the three commercial businesses closest to the proposed sign location were: Dogwood Veterinary Clinic - approximately 118 feet south of the proposed sign site. This business specializes in treating house pets. The clinic makes no farm calls, but horses may be treated if brought into the clinic. This business also contains a retail outlet; Billy's Trade Store, approximately 463 feet south of the proposed sign site, is a convenience store; and Plantation Farms Pet Grooming, approximately 780 feet northeast of the proposed sign site. This business, in addition to retail sales of pet items and food, incorporates a section for the grooming and boarding of household pets. This business does not handle livestock. (See Stipulated Fact 9.) These three business establishments, submitted by Petitioner for FDOT’s application of a "use test," were businesses one could actually walk into and purchase goods or services. In addition to information regarding the proposed sign site, the proposed construction on the site, and where the proposed construction was to occur, the permit application required the applicant to secure Okaloosa County’s local certification of the proposed site’s future land use designation and its current zoning, which Petitioner did. Although FDOT requires that local government entities sign off on advertising sign applications to FDOT, the State Agency does not rubber stamp those approvals. Ultimately, FDOT administers State statutes and regulations in conjunction with its Federal agreement. The State is not bound by the County’s permitting of signs. In January, 1972, the State of Florida entered into an agreement with the Federal Highway Administration, in which the State agreed to implement and carry out the provisions of Section 131 of Title 23, United States Code (1965), commonly referred to as "The Highway Beautification Act." Through this agreement, Florida agreed to limit the permitting of outdoor advertising signs adjacent (within six hundred sixty feet of the nearest edge of right-of-way) to Interstate or Federal-aid primary highway systems, to areas which are zoned industrial or commercial or are located in unzoned commercial or industrial areas. Failure of FDOT to comply with the terms of this agreement could result in a loss of 10 percent of federal-aid highway funds. Lynn Holschuh, FDOT Outdoor Advertising Administrator, testified that since the January 1972, agreement with the Federal Department of Transportation, Florida local governments have been required to “zone” all property. Therefore, the 1972 Agreement’s use of the term, “unzoned commercial or industrial areas,” is an anachronism, because all Florida property should now be zoned. Still, the term remains in the Florida Statutes, and FDOT uses this term to grapple with areas where specific land use is not very well defined. Zoning designations arise from county land development regulations, i.e. zoning ordinances. Future land use designations come from a Land Use Plan, adopted by the local entity or entities, pursuant to Chapter 163, Florida Statutes, and placed on a future land use map. The proposed sign location is on a parcel with a land use designation of “Agricultural 1” (AA1). (See Stipulated Fact 6.) In other words, the parcel is zoned for agriculture. Okaloosa County Code 8.02.02 provides that permanent off-site outdoor advertising signs are a permitted use within agricultural areas. (See Stipulated Fact 7.) Counties may allow off-site advertising along county roads, but interstate and federal primary-aid highways, such as SR 85, are within FDOT’s jurisdiction. The applicable Future Land Use Map designates the proposed site for “rural mixed land use” (RMU). (See Stipulated Fact 8.) This multiple use future land use map designation includes residential and non-residential uses. Non-residential uses may include commercial or business uses, although the parcel being designated “rural” suggests otherwise. There is no evidence herein that the terms used in the current zoning or on the future land use map do not comport with the same or similar terms used in Chapter 163, Florida Statutes, or in 23 C.F.R. Section 750.703(a) or 750.708. At all times material, Billy Wayne Strickland, Florida Department of Transportation Outdoor Advertising Senior Agent, processed all outdoor advertising applications, statewide, on behalf of FDOT. He testified that if the current land development regulations (current zoning) and the future land use designation (future land use map) differ, FDOT considers both. If the current zoning and future land use map are both a "mixed use" designation, FDOT performs its own use test, sometimes delegated to an outside consultant. Ms. Holschuh testified that “agriculture” is a “rather specific” zoning term/designation. However, if a zoning category authorizes more than one use, FDOT looks at the current primary uses of the parcel. FDOT’s intent is not to go by the label that has been applied to the zoning category, but “to go beyond the label to determine whether or not the area really has the characteristics of a commercial or an industrial area,” and that with regard to the characteristics of commercial zoning, the use test would be employed to determine if there were bona fide commercial or industrial activities within the specified footage of a proposed sign location. In processing the application(s) in this case, Mr. Strickland accepted the future land use designation “AA1”, for “agricultural,” as certified by Planner Tim Durbin on behalf of Okaloosa County. He also researched Okaloosa County’s land development regulations, which described the permitted uses for property designated "agricultural." The Okaloosa County Land Development Code specifically designated three zoning categories as “Commercial.” They are “Business Retail,” Business General,” and “Business Tourism”. In the Code, commercially zoned areas, under the categories of "Business Retail" and "Business General," states: "[t]his is a Commercial (C) and Mixed Use Development (MU) Future Land Use Map Category." Under the category of "Business Tourism," the Code states: "[t]his is a High Density Residential (HDR), a Commercial (C), and a Mixed Use Development (MU) Future Land Use Map Category." Each of these business categories allows for traditional commercial uses such as retail stores, filling stations, banks, restaurants and mini- warehouses. The Okaloosa County Land Development Code specifically designated two zoning categories as “Industrial.” They are “Protected Industrial Districts” and “Airport Industrial Park Districts.” The Okaloosa County Land Development Code, under “Industrial” uses, has zoning categories of "Protected Industrial Districts" and "Airport Industrial Park Districts." The Code provides: "[t]his is an Industrial (I) Future Land Use Map Category." No similar reference to either “commercial” or “industrial” zoning is made under the zoning for “agricultural” areas. The agricultural zoning does not mention “filling stations.” The Okaloosa County Land Development Code lists the following (with some restrictions not material to these proceedings) in areas zoned “agricultural”: Permitted Principal Uses and Structures: -Dwellings -Commercial and non commercial agricultural [structures] -Sawmills -Places of worship, schools, publicly owned and operated community structures and land, nursing homes, charitable or philanthropic institutions; public or private golf courses; public lands; public or private cemeteries, private lodges and fraternal orders. -Privately operated day nurseries, pre- schools, and kindergartens. -Private airstrips -Private Airports -Public or private fishing clubs, and other similar enterprises. -Recreational areas for public use, campgrounds, travel trailer parks, including golf driving ranges, swimming pools, fishing lakes, and similar recreation uses. -Public or private stables -Commercial kennels and the raising of other small animals for sale -Community residential homes -Radio, television and commercial towers and antennas. -Terminals for petroleum products -Public Utility Structures -Municipal solid waste transfer stations and recycling facilities. Permitted Accessory Uses and Structures: Uses and structures which are customarily accessory and clearly incidental and subordinate to permitted or permissible uses and structures. Home Occupations. Special Exception Uses and Structures: Activities that are agricultural or support agricultural activities and are in keeping with the rural character of the area Public or privately operated gun clubs Borrow Pits Construction and Demolition Debris landfills Prohibited Uses and Structures: Any use or structure not of a character indicated under permitted accessory uses and structures, or permitted as a special exception. Class I, II and III landfills are prohibited, along with other types of solid waste disposal facilities except as identified in Permitted Uses and Special Exceptions. [Boldface in original; underlining supplied] Mr. Strickland opined that a terminal for storing petroleum products, transported to that location in tanker trucks, for use by machinery on a farm, which use is allowed by the County’s zoning code to be located on land zoned agricultural (see Finding of Fact 29), would not be the same as a gas/filling station for cars, permitted under the County’s commercial or industrial classification. Mr. Strickland’s interpretation is reasonable, and it was not credibly refuted by Mr. Durbin, the County’s planner, whose testimony that the County would allow a filling station on the parcel in question did not comport with the clear designations under the County’s zoning. (See Findings of Fact 24-29 and 35-36.) In processing the applications in this case, Mr. Strickland reasonably interpreted the current zoning to permit only commercial uses "tied to agriculture" on this parcel. Mr. Strickland also used the Okaloosa County Tax Appraiser’s records. The County Appraiser listed the parcel whereon the signs were intended to be erected as improved agricultural land containing a single family dwelling for which a homestead exemption was taken/granted. A residential use clearly is not a commercial use. Mr. Strickland took this to mean that the “rural mixed use” for that parcel implied a “residential” use, as opposed to a “non-residential” and potentially commercial use, under the RMU designation on the future land use map. FDOT never permits billboards on residential property unless the parcel is currently zoned commercial and the parcel merely contains a private residence that has been grandfathered- in. On October 18, 2005, FDOT, through Mr. Strickland, issued a Notice of Denied Application stating: Location is not permittable under land use designations of the site [s. 479.111(2), FS] Location does not qualify as unzoned commercial/industrial area [s. 479.01(23), FS] At the same time, FDOT returned Petitioner’s application fee checks. (See Stipulated Fact 10.) At hearing, County Planner, Tim Durbin, testified that based upon Okaloosa County’s current zoning and future land use, the proposed sign site met Okaloosa County standards and would support an outdoor advertising sign. He further testified that the County no longer considers "AA1”, which once referred to parcel size, "to have any significance,” and that the County plans, in the future, “to remove that designation from its Land Development Code.” According to Mr. Durbin, the County now considers all agricultural land to be "AA." However, as of the date of hearing, more than a year after the sign permit application review by FDOT, the County still has not changed its AA1 category. According to Mr. Durbin, Okaloosa County currently would permit the following non-residential uses of the parcel at issue: "small scale agricultural, civil uses of churches and houses of worship, public or private primary or secondary schools, small scale neighborhood commercial or business uses, general commercial uses. Small scale neighborhood commercial and business includes neighborhood-serving offices, neighborhood-serving retail activities.” He opined that any classification that contains “residential” and “non-residential” uses, as do both the AA1 zoning category and the land use map ”RMU-rural mixed uses” designation, may contain commercial projects within the “non-residential” areas. He equated “filling stations” with “terminals for petroleum products." Herein, because the zoning and land-use map designations were not identical, Mr. Strickland did not consider, in making his decision to deny the sign permit, the three businesses listed near the parcel. He did try to discover how the actual parcel in question was currently regarded locally. In doing so, he used reasonable methods. He denied the sign application(s) on the basis of the future land use designation (rural mixed use-residential) and the agricultural zoning current when these applications were submitted and considered between September 27, 2005, and October 18, 2005, (AA1-agricultural). Petitioner has not demonstrated that any change in the zoning or land use designation has occurred since that time. However, when asked at hearing how he would consider those three nearby businesses (a veterinary, a convenience store, and a pet groomer), which had been submitted for a use test, Mr. Strickland testified that he would consider the veterinary and the store to be commercial uses and would consider Plantation Farm Pet Grooming to be not commercial because it contained a family residence with a homestead exemption. Petitioner did not refute that the pet groomer’s building primarily constitutes a residential use.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying the October 18, 2005, denial of sign application. DONE AND ENTERED this 4th day of April, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 4th day of April, 2007.
