Conclusions Having considered the totality of the record in this cause and being mindful of the development order of Lee County referenced above and the lack of expressed opposition to the establishment of the subject community services district by Lee County or any other person or entity, it is, concluded: That all statements contained within the petition are found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the Lee County Comprehensive Plan. That the area of land within the proposed district is of sufficient size, sufficiently compact, and is sufficiently contiguous to be developable as one functional, interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district would be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate, special-district government. DONE and ENTERED this 30th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1986. COPIES FURNISHED: Ken van Assenderp, Esq. YOUNG, VAN ASSENDERP, VARNADOE & BENTON, P.A. Post Office Box 1833 Tallahassee, Florida 32302 Melvin D. Deutsch, II, Esq. Timothy Jones, Esq. Westinghouse Gateway Communities, Inc. 1625 Hendry Street, Suite 201 Fort Myers, Florida 33901 Michael J. Ciccarone, Esq. Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 Glenn Robertson, Secretary Florida Land Water Adjudicatory Commission Office of the Governori The Captol Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: All statements contained within the Petition have been found to be true and correct. The area encompassed by the proposed District is 30,637+- acres located within unincorporated areas of Glades and Hendry Counties, Florida (Exhibit 7). The external boundaries of the District are coterminous with the external boundaries of General Development Corporation's Port LaBelle development. Within these boundaries but excluded from the District are several out parcels that were never part of the original Villages of Port LaBelle development, as well as four Port LaBelle plat units where there are currently numerous property owners. The property within the District to be excluded from the community development district is described in Exhibit 10. General Development Corporation, a Delaware corporation authorized to do business in the State of Florida, is the major landowner within the proposed District (Exhibits 8 and 9A). Four other property owners owning seven parcels within the proposed District have joined in the Petition (Exhibit 9B). Installment lot contract purchasers within the areas to be included within the District who had not received a Property Offering Statement from GDC indicating the possibility of the formation of a special taxing district were separately notified by mail of the time and place of hearing and provided with information on the functions of the proposed District. Out of a total of 10,270 letters sent, only six lot purchasers made further inquiries, and those inquiries were not related to the formation of the District, but were related to property values. (Testimony of Lawrence W. Mobley. Affidavit of Mark Billson, Exhibits 19A and B.) The area of land within the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functionally interrelated community. This finding is based in part on the fact that the area to be included within the proposed District contains approximately 30,637+- acres. Property within the proposed District includes "vested" areas and areas which have been and continue to be subject to Chapter 380, Florida Statutes, review and is planned to be developed as a functional, interrelated community with a variety of land uses, including commercial, institutional, residential, and recreational. The District is ultimately projected to include 49,646 dwelling units. The area encompassed by the proposed District was subject to a Master Application for Development Approval. The Master Land Use Plan depicting uses is shown in Exhibit 13A. Master Development Orders were issued by Glades and Hendry Counties in 1974, subject to further incremental review as detailed technical data became available (Exhibits 13A, B, C and D). In 1980, Development Orders were issued by Glades and Hendry Counties for Increment II (Exhibits 14A and B). Portions of the remaining property will be subject to further incremental review (Exhibit 15A). The area subject to further review contains approximately 13,690+- acres and includes residential villages and a town center as well as a variety of other land uses. The projected population for this area is 48,700 (Exhibit 15B). The proposed designation of the future general distribution, location and extent of public and private uses within the District is shown in Exhibit 15A. All mandatory elements of the local government comprehensive plans for both Glades and Hendry Counties have been adopted in compliance with the Local Government Comprehensive Planning Act of 1975 (Exhibits 17A, 17A1, 17B and 17B1) The proposed creation of the District is not inconsistent with applicable elements of the State Comprehensive Plan. The proposed District is not inconsistent with the applicable elements of the Glades and Hendry Counties Comprehensive Plans, as evidenced by the fact that the Planning Director for each county has indicated that the establishment of the District is not incompatible with applicable elements of the local government comprehensive plans (Petitioner's Exhibits 18A and 18B). The five persons proposed to be the initial members of the board of supervisors who shall serve in that office until replaced by elected members as provided by Section 190.006, Florida Statutes, are: C. C. Crump Senior Vice President General Development Corporation 1111 South Bayshore Drive Miami, --Florida -33131 (305) 350-1525 Arthur L. Harper, Jr. Vice President General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1533 James E. Clark Assistant Vice President 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1531 Wayne L. Allen Vice President and General Counsel General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1261 Lawrence W. Mobley Assistant Vice President General Development Corporation Highway 80 East Birchwood Boulevard LaBelle, Florida 33595 (813) 675-1712 The proposed name of the District is the Port LaBelle Community Development District. A map of the proposed District showing current major trunk water mains and sewer interceptors and outfalls have been provided in Exhibits 11A and B. No water distribution and collection systems are proposed to be constructed, operated or maintained by the District. Facilities are to be constructed by the District over a period of 40 years. The timetable for construction indicates that all facilities should be completed by the year 2020 (Petitioner's Exhibit 23). The total costs associated with the capital facilities to be constructed are estimated in good faith to be $5,433,000.00 (Exhibit 22). Glades County Resolution 80-9 (Exhibit 14A) and Hendry County Resolution 80-37 (Exhibit 14B) requested that the applicant, GDC, work together with each county to investigate the feasibility of establishing certain special taxing districts. As a result of these conditions, GDC filed a petition for establishing a community development district. The applicable local governments, the Board of County Commissioners of Glades and Hendry Counties have evidenced their support of Petitioner's request to have a District established by rule by passing Resolution 81-62, dated September 8, 1981, by Hendry County, and Resolution 81-17, dated September 14, 1981, by Glades County (Exhibits 20A and B, respectively). The District is the best available alternative for providing and delivering community services and facilities to the area to be serviced by the District. This finding is supported by the Resolutions of the Board of County Commissioners of Glades County and Hendry County acknowledging that neither county is presently in a position to provide any of the essential services required by a community of this size. The Community Development District will be able to provide reliable long-term maintenance of the services and facilities not otherwise provided by the counties or other appropriate units of local government (Exhibits 20A and B). The Barron Water Control District, a district established pursuant to Chapter 298, Florida Statutes, within the area of the proposed District, has also evidenced its support of Petitioner's request to establish a Community Development District by rule (Petitioner's Exhibit 21). The Community Development District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area that will be served by the District is amenable to separate district government. This finding is supported by the foregoing findings of fact which establish that the nature, location, and size of the proposed Port LaBelle Community Development District would make it amenable to separate district government. Members of the public testifying at hearing had no complaints that related to the specifics of the petition filed in this cause. Instead, their concerns related to the wisdom of the Legislature in enacting Chapter 190, Florida Statutes, in the first instance, and the witnesses' desires that the Act be repealed as soon as possible. These concerns are, of course, outside the scope of issues properly involved in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law hereby submitted, the Hearing Officer recommends that the Florida Land and Water Adjudicatory Commission grant the Petition of General Development Corporation, and adopt a rule which will establish the Port LaBelle Community Development District. DONE AND ENTERED this 9th day of July, 1982, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1982. COPIES FURNISHED: Nancy H. Roen, Esquire General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 Ms. Miriam Schreiner Post Office Box 1288 LaBelle, Florida Mayor Joan Jefferson City of Stuart Stuart, Florida 33495 Robert Miller, Chairman Treasure Coast Regional Planning Council Post Office Box 2395 Stuart, Florida 33495 Honorable Bob Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General State of Florida The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State State of Florida The Capitol Tallahassee, Florida 32301 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 Mr. John T. Herndon Director of the Office of Planning and Budget Executive Office of the Governor The Capitol Tallahassee, Florida 32301
The Issue The issues in this case are whether Amendments 05-02B, 05- 02C, 05-02G, and 05-02H to the Bay County Comprehensive Plan ("Plan") are “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes.2
Findings Of Fact Ordinance Limitations and FLUM Notations Much of Petitioners' evidence and argument concerning the FLUM amendments either overlook the ordinance limitations and FLUM notations, or presume that they are illegal and ineffective. But the greater weight of the evidence was that ordinance limitations and FLUM notations generally are not illegal, ineffective, or unprecedented. To the contrary, Rule 9J-5.003(6) defines a plan amendment to include "an action affecting a prior plan or plan amendment adoption ordinance"; and Rule 9J-5.005(1)(c)6. states that the adopted comprehensive plan includes "a copy of the local comprehensive plan adoption ordinance at such time as the plan is adopted." To amend the ordinance containing the cap or remove the notation on the FLUM, the amending ordinance would have to be processed as a new comprehensive plan amendment pursuant to Section 163.3184, Florida Statutes. Placing limitations in FLUM amendment adoption ordinances and FLUM notations is an option for planning for development that can be used in response to the recent change in the state’s growth management law requiring more stringent review of the impacts of comprehensive planning on public facilities. See §§ 1-5, Ch. 290, Laws of Florida (2005). Other goals of the Act and the Plan, such as protection of natural resources, also justify the limitation of development within a FLUM Amendment to a density supportable by development on the upland acreage of a site. As with the goals, objectives, and policies of the Plan, these development limitations can only be removed through the Plan amendment process. Need Although DCA frequently objects on the basis of need in the plan amendment review process, neither Chapter 163, Part II, Florida Statutes, nor Florida Administrative Code Chapter 9J-5, provides a clear formula for determining need. Instead, DCA uses a professional planning standard which examines population growth and growth trends within a community. Expert review and analysis of Bureau of Economic and Business Research (“BEBR”) studies and vacant land studies available as of December 20, 2005, revealed an accelerated growth trend occurring in the County--i.e., in recent years, the County’s actual population growth is running ahead of projected growth. In addition to projecting population growth and assessing capacity to accommodate growth, an allocation needs ratio (or multiplier) is necessary to ensure housing affordability and variety in the market; otherwise, the supply and demand relationship is too tight, which may cause a rapid escalation of housing prices. Because the farther in time a local government projects growth, the less accurate those projections tend to be, actual need is multiplied by an allocation needs ratio to produce an additional increment of residential land use to accommodate this potential for error. Small counties that experience above-normal growth rates may use allocation ratios as high as three or more in order to realistically allocate sufficient buildable land for future growth. The County’s allocation ratio of 2.2 before the WB DSAP and FLUM amendments was low from a long-term forecasting perspective. When the WB DSAP amendments are factored into the allocation ratio, such growth would raise the allocation ratio to 2.3, which is still relatively low. A land use plan should allow for sufficient inventory to accommodate demand and to provide some choice in order to react to economic factors. One such economic factor in the County is the demand for coastal residences. Natural Resources The County does not designate wetlands within individual parcels as a separate land use on its FLUM. There is no state law or rule which prohibits a residential land use designation for land containing wetlands. The Plan, as adopted, provides appropriate wetland protection policies and standards that are applicable to development throughout the County, including that proposed for the FLUM Amendments. The FLUM Amendments do not repeal, revise, or exempt development from the existing policies of the Plan. The Plan has provisions, including those in the future land use element, the conservation element, and the infrastructure element, which control development within wetlands, provide for floodplain management, restrict densities and intensities within areas with high aquifer recharge potential, and otherwise address impacts to natural resources. Development of the FLUM Amendments must comply with the entirety of the Plan, and the expert testimony was that the FLUM Amendments are consistent with all applicable Plan provisions. Petitioners did not provide any countervailing evidence on that issue, except the testimony of Dr. Bacchus. See Findings 57-58, supra. Public Facilities To address and control growth pressures the Future Land Use Element includes three classes of service areas to guide delivery of public services. These are the Urban Service Area, the Suburban Service Area, and the Rural Service area. Under the Plan, these designations determine where centralized water and sewer facilities will be provided. Under the Plan, lands located in the urban area receive the highest per-acre residential densities, lands located in the suburban area receive a lower per-acre residential densities, and lands located in the rural area receive the lowest per-acre residential densities. Throughout the hearing, Petitioner Brown appeared to argue that Chapter 163, Part II, Florida Statutes, and Florida Administrative Code Chapter 9J-5 require a showing of concurrency at the time of approval of a FLUM amendment. However, the law has long been interpreted to provide that concurrency is attained if the necessary facilities are in place at or after the development order stage, depending on the facility at issue. Consistent with law, the County’s Plan has strong concurrency policies, which provide that determinations regarding the availability of public facilities are required prior to the issuance of development orders or building permits and that applicants for such permits must provide detailed, concurrency-type analyses regarding traffic, water, sewer, and all other public facilities. With regard to school capacity, the County and the applicants coordinated with the County School District to provide a district-wide analysis of student enrollment and planned capacity which fulfills school concurrency requirements as currently interpreted by DCA. At least with respect to Clara Avenue and Register Farms, Petitioner Brown took the position that additional, refined data and analysis on school and grade- level scales were required. AMENDMENT 05-02C (COLLEGE STATION) Without specific density limitations, College Station would have a maximum development potential of 2,835 units under the residential land use designation. But approximately 289 acres of College Station contain wetlands (220 acres) or will be devoted to green space, roadways, or stormwater management facilities (69 acres). Even though they took the position that residential density throughout the County is calculated based on gross acreage, the County and St. Joe agreed that a realistic number of dwelling units locatable on the remaining 278 acres of College Station would be 1,390 instead of the 2,835 unit maximum. As indicated, this limitation was made part of the adopting ordinance. In addition, a further limitation to 800 units pending sufficient concurrency evaluations was noted on the FLUM. In every respect, the College Station FLUM Amendment is internally consistent with the Plan, the state comprehensive plan, and the West Florida Strategic Regional Policy Plan. Petitioner Brown put on no specific countervailing testimony that College Station was not consistent with specific provisions of those plans. Compatibility The College Station parcel is located in the eastern area of the County, southeast of U.S. Highway 231, a major four- lane divided arterial roadway, and east of Pipeline Road, a County roadway. There is residential development to the north, south, and west of College Station. There is a residential single-family development platted for 300 units to the north, and existing single-and multi-family development to the west. While there is a small amount of residential use east of College Station, a large portion of the properties to the east remain timberland. College Station is adjacent to the municipalities of Cedar Grove and Panama City. The eastern area of the County, and specifically the area generally located along the U.S. Highway 231 corridor, is transitioning from suburban to urban uses, which means the area is near urban uses, services, and facilities. College Station mapping depicts two out-parcels owned by others; one out-parcel is surrounded by College Station, and the other borders College Station on three sides and looks like a finger sticking into College Station Both out-parcels are classified as Agriculture Timberland, which allows one residential dwelling unit on each out-parcel. Petitioner Brown’s planning witness opined that keeping the Agriculture Timberland classification on the out- parcels made no sense due to their potential for noxious uses. But the existence of land not controlled by the applicant, regardless of its proximity to the land which is the subject of the application, goes to the issue of compatibility in a compliance challenge, and DCA had no concerns regarding the compatibility of the out-parcels with College Station. Petitioner Brown's evidence was not sufficient to prove that the College Station FLUM Amendment is incompatible with surrounding land uses and development or inconsistent with Plan policies relative to compatibility. Need One consequence of high demand for coastal residences is a considerable increase in costs of, and profits to be gained from sale of, such coastal residences. This has resulted in a migration of many of the County’s permanent residents from the coastal areas to the more affordable areas to the east, including along U.S. Highway 231. The east side of the County is a logical area for growth, as is evidenced by the growing size of the municipalities around the U.S. Highway 231 corridor and the increase in industrial and commercial uses in that area. The emergence of that area as an employment center is another factor supporting additional residential development there. Because there is not a lot of other vacant land available near centralized utilities in the eastern areas of the County, College Station is appropriate for the approved residential uses in this location. For these reasons, need was not an issue DCA raised with regard to the FLUM Amendment. Petitioner Brown's evidence was not sufficient to prove that there is not a demonstrated need for the College Station FLUM Amendment. Natural Resources The data and analysis provided to support the College Station FLUM Amendment covered a wide range of natural resources characteristics of the parcel. No agencies questioned the sufficiency of the natural resources data and analysis in the ORC process. The 220-acre assessment of wetlands on College Station was based on a review of several professionally-accepted sources, including NWI mapping. See Finding 55, supra. Based on Federal Emergency Management Area (“FEMA”) mapping, a small portion of College Station falls within a floodplain. There are no federal, state, or local regulations that prohibit development within floodplains. Development on College Station will be required to comply with FEMA and local floodplain regulations at the development order stage. Additionally, because a large portion of College Station falls within the Plan’s designated North Bay Ecosystem Management Area, development must comply with stringent stormwater treatment and attenuation requirements similar to those for an OFW. The 1390-unit density limitation approved for College Station is partially based on an acreage reservation for the construction of stormwater management facilities. St. Joe presented analysis in the form of a conceptual development plan showing that the approved levels of development could be constructed at College Station with little or no adverse impacts to wetlands, which is consistent with Plan objectives for protection and conservation of wetlands. The conceptual development plan provides for a minimum 30-foot buffer from all wetlands, consistent with the requirements of the Plan, and reacted appropriately to the location of floodplains and other constraints within College Station. The College Station parcel is suitable for the approved level and type of development. Public Facilities There is adequate water and sewer capacity in the County’s system to serve the maximum level of development approved for College Station, and the necessary County infrastructure is already in place and near College Station. With regard to traffic facilities, DCA determined that the potential existed for a level of service (LOS) failure on a segment of U.S. Highway 231 after cumulative analysis of the traffic impacts from College Station and Register Farms. To address this potential LOS failure, DCA recommended phasing of the two developments so that they would not cause that roadway segment to become deficient, with a corresponding provision that development could continue when road capacity was enhanced. Consistent with that recommendation, development on the College Station parcel is limited to 800 residential units through the placement of a notation on the FLUM. See Finding 78, supra. Regardless of this notation on the FLUM, a concurrency evaluation would be required during the development order process. Both DCA and the Florida Department of Transportation (FDOT) agreed that traffic concerns were addressed adequately. The traffic analysis for College Station was based on an average daily rather than a peak-hour trip analysis. An average daily trip analysis is typical of planning level studies and is accepted by the FDOT for FLUM amendments. In any event, for the only roadway showing a potential deficiency--a segment of U.S. Highway 231--the average daily results and peak-hour results would be similar if not the same, due to the roadway’s typical commuter route traffic characteristics. The evidence presented by Petitioner Brown did not prove that the College Station FLUM Amendment is inconsistent with the public facility requirements of the Act. Support by Data and Analysis Petitioner Brown questioned whether there were data and analysis "concerning the affect [sic] of the proposed plan amendment on the flooplain [sic] and drainage pattern." PPRO, ¶II.A.7. As indicated, there were data and analysis, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. Petitioner Brown questioned the use of the 1,390 residential unit limitation for purposes of the College Station traffic analysis. As indicated, it was appropriate to use the 1,390 residential units for purposes of the traffic analysis. Petitioner Brown questioned whether there were data and analysis supporting the College Station FLUM amendment with out-parcels. As indicated, there were data and analysis to support the configuration of the FLUM amendment, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. Petitioner Brown questioned the adequacy of data and analysis "concerning listed species that are located adjacent to the property and may be present on the property." PPRO, ¶II.A.8. Specifically, Panama City Crayfish and Apalachicola Dragonhead were found in the cleared power line easement along a boundary of the College Station, but the property itself was not surveyed for the presence of those species. Petitioner Brown argues: "Not providing data and analysis leads to the creation of unrealistic development expectations for the property owner and puts the planning process on its head." PPRO, ¶II.A.10. But the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate, or that St. Joe has any "unrealistic development expectations" from having found listed species on a cleared power easement on its property but not yet having surveyed the remainder of its property. Petitioner Brown argued: "Average daily trips is not the best available data to conduct an analysis of the proposed FLUM amendment, instead Peak Hour Trips should be used " PPRO, ¶II.A.21. As indicated, the use of average daily trips was adequate data and analysis for purposes of the traffic analysis. In addition, original data collection is not required. See Fla. Admin. Code R. 9J-5.005(2)(b). Petitioner Brown argued: "There was no analysis as to whether [the 30-inch potable water line and 10-inch force sewer main adjacent to the property] were of sufficient size . . . ." PPRO, ¶II.A.22. As indicated, there were data and analysis as to the availability of public facilities to serve development at College Station, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. To the contrary, there was specific, undisputed expert testimony that the potable water line and force sewer main are adequate to serve the College Station development. Petitioner Brown argued: "No data and analysis was submitted to show that the County had reviewed the application for adverse impacts to the natural resources described in the conservation element or coastal element of the Bay County Comprehensive Plan." PPRO, ¶II.A.27. As indicated, there were data and analysis as to natural resource impacts, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. (As indicated, the Coastal Management Element does not apply. Also, much of the argument was based on Dr. Bacchus's generalized opinions.) See Findings 57-58, supra.) Citing Dr. Bacchus's testimony, Petitioner Brown argued: "Clustering the additional density allowed by the Plan Amendment would cause impacts to adjacent wetlands In addition, clustering of development density assigned to wetlands on the adjacent uplands will cause adverse impacts " PPRO, ¶¶II.A.29-30. However, as indicated in Finding 100, supra, by virtue of the limitation in the adopting ordinance, the FLUM amendment assigns no residential density to 220 acres of wetlands on the site. While Dr. Bacchus raised generalized questions about allowing high-density residential development on uplands, it was not proven that the specific density assigned by the College Station FLUM amendment was inappropriate. As indicated, it was not proven that the College Station FLUM Amendment was not supported by data and analysis, as required by Sections 163.3177 and 163.3178, Florida Statutes. Capital Improvements Schedule Petitioner Brown argues: "It is beyond fair debate that Bay County's Comprehensive Plan, the DSAP amendments and the proposed FLUM Amendments are not in compliance, because Bay County does not have a capital improvement schedule for provision for public facilities set forth, although required by Section 163.3177(3)(a)(5), Florida Statutes." PPRO, ¶II.A.25. But her evidence failed to prove that changes to the capital improvements schedule were necessitated by the College Station FLUM Amendment. AMENDMENT 05-02G (CLARA AVENUE) The Clara Avenue parcel is located in the southern area of the County just north of U.S. Highway 98, a major four- lane divided arterial road, and south of West Bay. It is adjacent to the City of Panama City Beach to the west. Also to the west is residential development in a golf course community. To the south, the FLUM designates the property along U.S. Highway 98 as General Commercial. Petitioner Brown alleged that the Clara Avenue FLUM Amendment allows a change in land use to a category allowing higher density and intensity of use for property surrounded by lower density and intensity land uses, resulting in an internal inconsistency. See Amended Petition, ¶ 67. However, this argument was not maintained in the PPRO. Because the property to the south is designated General Commercial and the property to the west has residential uses, there is no internal inconsistency. The County has a Wide Open Spaces policy in the Plan that designates urban, suburban, and rural service areas. The Urban Service Area is within or near city limits and is appropriate for a full range of urban services including paved roads, central water, and sewer. The Clara Avenue parcel is located in the Urban Service Area. The designation of Agriculture in the FLUM is not one that the Plan normally includes within the Urban Service Area. Thus, the adopted land use is more consistent with the County’s Wide Open Spaces Policy. The area of the County between Philips Inlet and the Hathaway Bridge along U.S. Highway 98 is transitioning from agricultural to urban. This is demonstrated by the County’s inclusion of much of that area in the Urban Service Area on the FLUM. The Clara Avenue FLUM Amendment encourages the separation of urban and rural land uses by channeling urban uses into the Urban Service Area adjacent to Panama City Beach, an incorporated municipality. No Commercial Allowed in General Commercial In addition to questioning the legality and enforceability of the Clara Avenue FLUM amendment's adoption ordinance and FLUM notation limitations to 999 residential units (which already has been addressed, see Finding 87, supra), Petitioner Brown’s planning witness also objected that the limitations to 999 residential units were incompatible with the designation of the Clara Avenue parcel as General Commercial, and internally inconsistent. While clearly compatible (since residential is allowed in General Commercial), internal consistency is a closer question since the Purpose of General Commercial under the Plan is to: "Provide areas for the continuation , expansion, and creation of business enterprise." Plan Table 3A. At the same time, Table 3A places no limits on the amount of residential allowed in General Commercial, as the countervailing expert testimony and arguments point out. While the limitations are unorthodox and counter-intuitive, and even more likely to cause confusion than the limitation on the other FLUM amendments, it was not proven beyond fair debate that the Clara Avenue adoption ordinance and FLUM notation limitations are inconsistent with Plan Table 3A. Need Analysis Citing the testimony of Dr. Fishkind, Petitioner Brown argued: "No data and analysis concerning the need for the proposed plan FLUM amendment was provided. The demand for residential units is 45,000 units over the next 20 years and the 110,000 units that could be developed under the existing comprehensive plan and plan amendments far exceeds the estimated population growth and demand. No data was submitted showing a bona fide need for this additional residential development density." PPRO, ¶II.B.5. However, Dr. Fishkind actually calculated that 101,000 units could be developed under the existing comprehensive plan and plan amendments and, as indicated, calculated the allocation ratio for the County to be 2.3 or 2.4 with the plan amendments, which he characterized as being reasonable but still "on the low side for this type of community." (T. 1333) See Finding 93, supra. DCA did not even consider need to be an issue regarding the Clara Avenue FLUM Amendment. Expert testimony established that the re-designation of land to residential use was justified in the County based on the limited amount of vacant land near centralized utilities within unincorporated County and the County’s projected need for residential units. While this testimony referred specifically to College Station, it also was applicable to Clara Avenue. In addition, the General Commercial designation (with or without commercial uses) is as or more appropriate than the current agricultural designation. Petitioner Brown did not prove that there was no adequate demonstration of need for the Clara Avenue FLUM amendment. Natural Resources Petitioner Brown argues that the Clara Avenue FLUM amendment was not based on appropriate data and analysis regarding wetlands (namely, County GIS wetlands maps based on NWI data and aerial photographs) but rather on inaccurate depictions on a conceptual site plan presented by the applicant. The evidence proved that the depictions on the conceptual site plan differed somewhat from the other data sources but did not prove that the conceptual site plan depictions were inaccurate. Regardless of the depictions on the conceptual site plan, the other wetlands information is adequate data for purposes of a FLUM amendment. (By rule, the NWI information is acceptable "for preliminary identification of wetland locations " See Fla. Admin. Code R. 9J-5.005(2)(c).) The wetlands and floodplain information and analysis required at the comprehensive plan amendment stage of development of a parcel is less extensive than would be required at a development order or permitting stage. It was not proven that the information showing wetlands on the property prohibited the General Commercial designation, with limitation to 999 residential units. To the contrary, the conceptual site plan incorporated the best available data based on the surveys and environmental consultants and demonstrated that the Clara Avenue parcel could be developed in a manner consistent with the Plan within the wetland constraints presented by the Clara Avenue parcel while protecting, preserving, and maintaining natural wetland systems. As with College Station, Petitioner Brown cited Dr. Bacchus's testimony and argued: "Clustering the additional density allowed by the Plan Amendment from Agricultural to General Commercial (either 1202 or 999 with limitation of section 2, Ord. 05-81) would cause impacts to adjacent wetlands. . . . In addition, clustering of development density assigned to wetlands on the adjacent uplands will cause adverse impacts . . . ." PPRO, ¶II.B.32. But the County's Plan has adequate provisions for the protection of wetlands. While Dr. Bacchus raised generalized questions about the impacts of allowing higher-density residential development on uplands, it was not proven that the specific density assigned by the Clara Avenue FLUM amendment (999 residential units on 80 acres) was inappropriate. Likewise, her generalized opinions about the impacts of any additional development on supplies of potable water, disposal of treated wastewater, offsite sewage sludge disposal, water quality, and the natural system in general did not prove that the Clara Avenue FLUM amendment was inappropriate. Public Facilities As with College Station, Petitioner Brown argued that the data and analysis for the Clara Avenue FLUM Amendment were inadequate because it failed to take into account the maximum theoretical densities for the parcel without the “999 residential units and no commercial uses” limitation. However, as indicated, DCA worked with Clara Avenue to institute the “999 residential and no commercial uses” limitation on the development of the Clara Avenue parcel that is noted on the FLUM to address a potential level of service failure for transportation and other facilities. The limitation provided in the ordinance and on the FLUM does not allow a higher density and intensity of use and was designed to prevent any unsustainable growth due to the FLUM Amendment. In light of the limitation to 999 residential units, an adequate analysis of the public facilities was conducted, which appropriately concluded that adequate public facilities will exist at the time of development of the Clara Avenue FLUM Amendment. The water and sewer service to the Clara Avenue parcel will be provided by the City of Panama City Beach. Al Shortt, the City Engineer and Utilities Director for the City of Panama City Beach, testified that there is adequate water and sewer capacity in the City of Panama City Beach’s system to serve the maximum level of development approved for Clara Avenue. The Clara Avenue project would not adversely impact water or wastewater facilities in the City of Panama City Beach. Any additional infrastructure necessary to provide water and wastewater services will be provided by Clara Avenue consistent with the Panama City Beach requirements. In addition to Shortt’s analysis, Ray Greer also evaluated Panama City Beach’s water capacity, wastewater capacity, and expected public works expansions for water and wastewater and any effects the Clara Avenue FLUM Amendment would have on those public facilities. He determined that the Clara Avenue FLUM Amendment would not have any adverse impacts on water or wastewater. Petitioner Brown presented no evidence to the contrary. The solid waste facility that would serve the Clara Avenue FLUM Amendment is the Steelfield landfill in Bay County. Greer testified that the Steelfield landfill will not be adversely affected by the impacts due to the Clara Avenue FLUM Amendment. Petitioner Brown presented no evidence to the contrary. Petitioner Brown's planning witness observed that the existence of current water and sewer capacity is not a commitment or guarantee that capacity will be available in the future. But commitments and guarantees are not required at the FLUM amendments stage of the planning process. Clara Avenue conducted a comprehensive planning traffic impact analysis based on the objections raised by DCA requesting an analysis based on generally accepted methodology. This analysis included a P.M. peak-hour analysis for various road links around the Clara Avenue site. The P.M. peak-hour analysis typically is the worst case scenario. The study looked at projected volumes in 2010 and found the Clara Avenue FLUM Amendment, with the adopted limitation to 999 residential units, would not significantly and adversely impact any roadway segments within the meaning of Florida Administrative Code Rule 9J-5.019. The current state of the Clara Avenue roadway north of U.S. Highway 98 is a one-lane dirt path. Petitioner Brown raised issues concerning whether the current state of Clara Avenue north of U.S. Highway 98 is consistent with the requirements of Section 2.1.3.4 on page 2-4 of Joint Exhibit 23 that General Commercial should “generally [front] on a paved collector or arterial roadway.” Clara Avenue’s expert planning witness testified that this does not create an issue at the comprehensive plan amendment stage because Clara Avenue will be paved and provide access to U.S. Highway 98 and function as a significant roadway north of U.S. Highway 98 similar to its function south of U.S. Highway 98. Petitioner Brown did not mention the issue in the PPRO. With respect to the adequacy of public facilities for the Clara Avenue FLUM amendment, Petitioner Brown repeated the same argument that she made with respect to College Station's alleged lack of a CIS: "It is beyond fair debate that Bay County's Comprehensive Plan, the DSAP amendments and the proposed FLUM Amendments are not in compliance, because Bay County does not have a capital improvement schedule for provision for public facilities set forth, although required by Section 163.3177(3)(a)(5), Florida Statutes." PPRO, ¶II.B.26. But, as with College Station, her evidence failed to prove that changes to the capital improvements schedule were necessitated by the Clara Avenue FLUM Amendment. Petitioner Brown did not specifically plead any issues regarding schools, except with regard to the WB DSAP Amendment. However, adequacy of public facilities was raised as an issue as to Clara Avenue, evidence was presented during the final hearing, and the issue was included in the PPRO, ¶¶II.B.27-30. Clara Avenue developed an accepted methodology and undertook an analysis, taking into consideration Florida Senate Bill 360, which was enacted by Chapter 290, Laws of Florida (2005), to determine the projected increase of school population attributable to the Clara Avenue FLUM Amendment, and it was determined that there would not be an adverse impact to the schools from the Clara Avenue FLUM Amendment in the short term or long term. Bay County's School Facilities Planner agreed. Although she disputed the school analysis, Petitioner Brown provided no evidence to contradict the analysis conducted by Greer and the Bay County School District. Petitioner Brown's dispute with the school analysis seems to be, essentially, twofold. First, she criticizes reliance on the adoption ordinance and FLUM notation limitation to 999 residential units, which already has been addressed. Second, she argues, essentially: "No data and analysis sorted by 'elementary, middle and high schools' was submitted by the applicant." Although such information was requested in DCA's ORC, it was not demonstrated that such information is required at this point in the planning process at this time. (Senate Bill 360 does not require the establishment of school LOS standards until 2008.) Petitioner Brown failed to prove that the Clara Avenue FLUM Amendment is inconsistent with the public facility requirements of the Act or any applicable comprehensive plan. AMENDMENT 05-02H (REGISTER FARMS) With respect to need, Petitioner Brown offered no testimony that there was no need for the development as authorized by the Register Farms FLUM Amendment. Most of the arguments Petitioner Brown directs to the Register Farms FLUM amendment are arguments also made as to College Station and Clara Avenue. See PPRO ¶¶II.C.2-18, 22-29. (In some cases, Petitioner Brown appears to repeat arguments with respect to the other FLUM amendments that do not apply to Register Farms. See PPRO ¶II.C.24-27.) As with the other FLUM amendments, issues as to need, availability of public facilities, and adequacy of the CIS are premised on the alleged illegality and unenforceability of the adoption ordinance and FLUM notation limitations. Issues regarding natural resources also are premised on Dr. Bacchus' generalized opinions about the impacts of development on the natural environment. In those regards, those issues already have been addressed and need not be repeated. Compatibility Petitioner Brown argues with respect to the Register Farms FLUM amendment: "It is incompatible to put large residential areas next to existing agricultural operations because of machinery, insecticides, burning, farm animals, and there should be a separation between rural and urban uses." PPRO, ¶II.C.19. But there was ample evidence to justify the FLUM amendment. Ray Greer testified that the Register Farms site was located within the Suburban Service Area and was in an area that was experiencing growth. He explained that, as with College Station, some of this growth was due to the fact that people were moving inland to find more affordable housing opportunities. The County planning staff summary report prepared for the Register Farms FLUM Amendment concluded that because of its location and nearby/surrounding land uses, the subject properties are appropriate for land use activities other than agriculture. It found that the FLUM Amendment fills in a gap between existing residential and commercial areas which have developed along U.S. Highway 231. If developed as proposed, the requested FLUM Amendment would create opportunities for shopping and other commercial activities for which area residents must currently travel considerable distances on U.S. Highway 231. While this will create additional local traffic (which will not drop U.S. Highway 231 below its adopted LOS), it will reduce the amount of traffic flowing from the County’s less urbanized area into the urban area for basic shopping needs. Petitioner Brown did not prove that the Register Farms FLUM Amendment is not compatible with surrounding land uses. Natural Resources As regards wetland issues, Mr. Greer testified that his analysis provided with the FLUM Amendment identified potential wetlands on site, and he concluded that the site was suitable for development. Petitioner Brown’s wetlands witness, Dr. Bacchus, testified that wetlands on the Register Farms site were not a major factor in her analysis. She was more concerned with the potential impacts to offsite impacts to wetlands from water and sewer and waste disposal services needed to support development of the site. With respect to onsite wetlands, Dr.Bacchus criticized the resolution of the aerial photography included in the transmittal and adoption packages and testified that there are aerials with better resolution that better show excavation onsite that, as Petitioner Brown argues, "would increase the potential for adverse impacts from an environmental standpoint." PPRO, ¶II.C.21. But it was not proven that the wetlands data and analysis did not support the Register Farms FLUM amendment. As to the offsite land use activities cited by Dr. Bacchus, environmental impacts are addressed during required permitting by FDEP. See Finding 58, supra. Dr. Bacchus provided no quantitative analysis, nor did she provide any specific evidence of any impacts to offsite natural resources by the Register Farms FLUM Amendment. She was also apparently operating under the incorrect assumption that the Register Farms FLUM Amendment somehow was affected by the “gross” to “net” density issue associated only with the DSAP amendment. Nothing in Chapter 163, Part II, Florida Statutes, or Rule Chapter 9J-5 requires data and analysis of the impacts of development resulting from a FLUM amendment on offsite wetlands. On the contrary, Rule 9J-5.013(3) discusses wetlands in the context of the land on which the FLUM is proposed, stating: “Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands.” In this case, the County has policies in its Plan providing that development should be directed away from wetlands. Mr. Greer testified that the amount of development authorized by the FLUM amendment took into account the wetlands on the site. Petitioner Brown offered no testimony to support her allegations that the Register Farms FLUM Amendment caused flooding or impacted coastal resources pursuant to Section 163.3178, Florida Statutes. At any rate, like College Station, the Register Farms FLUM Amendment is not located within the designated coastal planning area. Petitioner Brown did not prove that the Register Farms FLUM Amendment is inconsistent with the requirements of the Act and Rules regarding natural resources. Public Facilities Ray Greer, who was qualified as an expert witness in the field of comprehensive planning, prepared data and analysis to respond to DCA’s concerns raised in its ORC report regarding the Register Farms FLUM Amendment, and his testimony and report demonstrated that there were adequate data and analysis of the impacts of the Register Farms FLUM Amendment on public infrastructure and that the development authorized by the FLUM Amendment could be served with adequate public facilities, including schools. Petitioner Brown's only arguments to the contrary (which, unlike Clara Avenue, do not include reference to schools) already have been addressed. Petitioner Brown did not prove that the Register Farms FLUM Amendment is inconsistent with the requirements of Chapter 163, Part II, Florida Statutes, and Rule Chapter 9J-5 regarding impacts to public facilities and infrastructure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order determining that Amendments 05-02B, 05-02C, 05-02G, and 05-02H are “in compliance,” as defined Section 163.3184(1)(b), Florida Statutes, and reserve jurisdiction on all pending motions for sanctions. DONE AND ENTERED this 5th day of December, 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 5th of December, 2006.
The Issue Whether Policy 20.11.1 of Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact The Petitioners. Pasco is a political subdivision of the State of Florida. Its offices are located at 705 East Live Oak, Dade City, Florida. BAGT is an association. BAGT's approximately 697 members are involved in some manner in the development or building industry in the Tampa Bay region. For the most part, BAGT's members reside and own property within the four-county jurisdiction of the TBRPC. BAGT's membership includes approximately 176 builder and developer members and 520 associate members who are subcontractors, material suppliers, financial institutions, engineering firms, architectural firms and other types of firms that provide goods and services related to the building industry. BAGT's membership includes builders who build in "development of regional impact" (hereinafter referred to as "DRI"), projects and associate members who provide construction support services to DRI projects. During an eighteen month period, over 50 percent of the building permits issued in Hillsborough County were issued to twenty-three BAGT builder- members for DRI projects. This amounts to approximately 3.3 percent of the membership of BAGT. BAGT works on behalf of its membership to promote a strong and viable building industry. BAGT has the responsibility to "work for the elimination of governmental orders improperly restricting the home building industry and to support beneficial directives." Certificate of Reincorporation and By-Laws, BAGT exhibits 5 and 6. BAGT members have to consider the levels of service for transportation of local governments and TBRPC in obtaining permits for DRI projects. If more stringent levels of service are required for a project, the development may be prolonged and be more costly to complete. The City is a political subdivision of the State of Florida. The City's offices are located at 315 East Kennedy Boulevard, Tampa, Hillsborough County, Florida. The City and Pasco are located within the jurisdiction of TBRPC. The Petitioners are all substantially affected by the Challenged Rule. The Respondent. TBRPC is an agency of the State of Florida within the definition of the term "agency" contained in Section 120.52(1)(b), Florida Statutes. TBRPC was created pursuant to Section 186.504, Florida Statutes. TBRPC's offices are located at 9455 Koger Boulevard, St. Petersburg, Pinellas County, Florida. TBRPC's geographic boundaries, which generally include the four- county, Tampa Bay region, include the geographic areas within Department of Transportation Districts one and seven. TBRPC does not build or maintain roads. Nor does TBRPC provide funds to those that are responsible for building or maintaining roads. Comprehensive Regional Policy Plans. Pursuant to Section 186.507, Florida Statutes, all regional planning councils, including the TBRPC, are required to adopt a "comprehensive regional policy plan". Among other things, the comprehensive regional policy plan must include the following: (8) Upon adoption, a comprehensive regional policy plan shall provide, in addition to other criteria established by law, the basis for regional review of developments of regional impact, regional review of federally assisted projects, and other regional overview and comment functions. As required by Section 186.507(1), TBRPC has adopted a comprehensive regional policy plan, Rule 29H-9.002, Florida Administrative Code, Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region. The comprehensive regional policy plan was adopted in 1987, and has been amended in 1988, 1990 and 1991. Although in adopting a comprehensive regional policy plan a regional planning council is required to consider state and local plans and local governments are given an opportunity to comment, the regional planning council is not bound by those plans or comments. Section 186.507(4)-(6), Florida Statutes. TBRPC's comprehensive regional policy plan was adopted before some of the local government comprehensive plans in its region were promulgated. TBRPC interprets Sections 186.507(1) and (8), Florida Statutes, to require that it include the criteria it intends to use in its review of a DRI. The Department of Community Affairs has been designated by the Executive Office of the Governor to review comprehensive regional policy plans and amendments. See Section 186.507(2), Florida Statutes. The Department of Community Affairs reviewed TBRPC's comprehensive regional policy plan. Developments of Regional Impact. Part of the responsibility assigned to regional planning councils, including TBRPC, is the responsibility to review DRIs. Section 380.06, Florida Statutes. DRIs are created and regulated in the Florida Environmental Land and Water Management Act, Sections 380.012-380.10, Florida Statutes. DRI is defined in Section 380.06(1), Florida Statutes. The procedure for reviewing DRI applications is set out in Section 380.06, Florida Statutes. Several government agencies are involved in the review process, including TBRPC. The Department of Community Affairs is required to, among other things, adopt rules governing the review of DRI applications. Section 380.06(23)(a), Florida Statutes. Pursuant to this authority, the Department of Community Affairs has adopted Chapter 9J-2, Florida Administrative Code. These Rules wee promulgated to "ensure uniform procedural review of developments of regional impact by [the Department of Community Affairs] and regional planning agencies under this section." Section 380.06(23)(a), Florida Statutes. The Bureau of State Planning is the bureau of the Department of Community Affairs with primary responsibility for administering Chapter 380, Florida Statutes, to the extent of the Department of Community Affairs' involvement. Regional planning councils, including the TBRPC, are required to review all DRI applications involving developments in their regions. Section 380.06(12), Florida Statutes, requires that regional planning councils issue a report and make recommendations concerning the impact of proposed DRIs. Regional planning councils, while subject to any rules governing DRI review adopted by the Department of Community Affairs, are authorized to adopt additional rules concerning their review of DRI applications. Section 380.06(23)(c), Florida Administrative Code. Those rules, however, must not be "inconsistent" with the rules governing DRI review adopted by the Department of Community Affairs. TBRPC interprets Section 380.06(23)(c), Florida Statutes, as authorizing the Challenged Rule. What is "inconsistent" for purposes of Section 380.06(23)(c), Florida Statutes, is not specifically defined. Ultimately, the decision on a DRI application is made by the local government in which the DRI is located. Section 380.06(15), Florida Statutes. In making that decision the local government is required to consider the local government's comprehensive plan and land development regulations, the State Comprehensive Plan and the report and recommendations of the regional planning council. Section 380.06(14), Florida Statutes. Local governments are governed by the provisions of Section 380.06(15), Florida Statutes, in determining whether to issue a DRI. A local government's decision on a DRI application may be appealed to the Florida Land and Water Adjudicatory Commission (hereinafter referred to as "FLWAC"). Section 380.07, Florida Statutes. The final decision on the DRI application, if an appeal is taken, is made by FLWAC after a formal administrative hearing is conducted pursuant to Chapter 120, Florida Statutes. Regional planning councils have the right to appeal a local government's decision. In determining whether a DRI should be granted, local governments are not bound by any of the comments made by the regional planning council that reviewed the DRI application. They are only required to consider the comments of the regional planning council made pursuant to Section 380.06(12), Florida Statutes. Should the local government fail to adequately take into account the comments of the regional planning council, however, it faces the possibility that the regional planning council will appeal the local government's decision on a DRI application to FLWAC. The Role of Comprehensive Plans in DRI Reviews; Establishing Levels of Service. The local government comprehensive plan and the land development regulations which a local government is required to consider when reviewing a DRI application are required by Part II of Chapter 163, Florida Statutes. Every local government in Florida is required by Section 163.3167, Florida Statutes, to adopt a comprehensive plan. Land development regulations governing the issuance of development orders are required by Section 163.3202, Florida Statutes. In the TBRPC region the comprehensive plans of all local governments, except St. Petersburg Beach and Port Richey, have been found by the Department of Community Affairs to be in compliance with Chapter 163, Florida Statutes. Among other things, each comprehensive plan must provide for transportation facilities within the local government's geographic area. Section 163.3177, Florida Statutes. The Legislature has required that local governments specifically establish levels of service for public facilities in their comprehensive plans. Section 163.3177(10)(f), Florida Statutes. See also Rule 9J-5.005(3), Florida Administrative Code. A "level of service" for a road is the quantification of the quality of travel on the road expressed by letter grades rating from an optimal operating condition of "A" to a rating of unstable operational conditions of "F". Local governments are required by Section 380.06(14), Florida Statutes, to insure that a development is consistent with its comprehensive plan. Therefore, it must insure that a DRI is consistent with the levels of service contained therein. See also Section 163.3194, Florida Statutes. The Florida Department of Transportation has also been specifically authorized to establish levels of service for state roads. Sections 334.044(10) and 336.45, Florida Statutes. The Department of Transportation has adopted Chapter 14-94, Florida Administrative Code, establishing levels of service for its use. The Department of Community Affairs has required that levels of service contained in local comprehensive plans be compatible with Department of Transportation levels of service "to the maximum extent feasible". Rule 9J- 5.0055(1)(d), Florida Administrative Code. The Legislature has not specifically required or authorized regional planning councils to adopt levels of service. Nor has the Legislature specifically prohibited regional planning councils from adopting levels of service. The City's and Pasco's Comprehensive Plans. Pasco's comprehensive plan has been adopted and in compliance since June, 1989. In its comprehensive plan, Pasco has included levels of service for State roads which are compatible with those established by the Department of Transportation. Pasco uses the levels of service contained in its comprehensive plan to review DRI applications. The City adopted its comprehensive plan by Ordinance No. 89-167, in July, 1989. The City's comprehensive plan has been found to be in compliance with Chapter 163, Florida Statutes. The City's comprehensive plan contains transportation levels of service in its Traffic Circulation Element. The City uses the levels of service contained in its comprehensive plan to review DRI applications. The Challenged Rule. Pursuant to Section 186.507(1), Florida Statutes, TBRPC is required to include in its comprehensive regional policy plan regional issues that may be used in its review of DRI applications and the criteria TBRPC intends to rely on in its review. As part of its comprehensive regional policy plan, TBRPC has enacted Policy 20.11.1 of Goal 20 of the Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region, as Rule 29H-9.002, Florida Administrative Code. Notice of the Challenged Rule was published in the Florida Administrative Weekly on July 24, 1992. The Challenged Rule was approved by TBRPC on September 14, 1992, and it was filed for adoption on October 12, 1992. The Challenged Rule provides: Development of Regional Impact (DRIs) shall be required to analyze project impacts and mitigate to an appropriate peak hour, peak season operating Level of Service (LOS) on regional roads. The level of service standards for DRI's within the Tampa Bay regional shall be: Rural Roads (those not included - C in an urbanized or urbanizing area or a TCMA Within designated CBDs - E Within designated Regional - E Activity Centers Within Transportation Concurrency - as Management Areas (TCMA) established pursuant to Sec. 9J-5.0057 Constrained or Backlogged - maintain Facilities existing V/C (Volume to Capacity) All other regional roadways - D If the affected local government(s) has more stringent standards, those standards will apply. TBRPC adopted the Challenged Rule to fulfill its responsibility to include the criteria for transportation impacts to be used in its DRI review in its comprehensive regional policy plan. TBRPC has been using levels of service for review of transportation impacts of DRIs since 1975. There are levels of service contained in the comprehensive plans of the City and Pasco which are different than some of the levels of service contained in the Challenged Rule. The Challenged Rule provides that the levels of service contained therein are to be used by TBRPC in its review of DRI applications except to the extent that a level of service contained in the local government's comprehensive plan may be more stringent. To the extent that a level of service in the Challenged Rule is more stringent, however, TBRPC intends to recommend to the local government the use of its more stringent level of service. Ultimately, if the local government decides to use a less stringent level of service contained in its comprehensive plan and its decision is appealed, FLWAC will be required to exercise its authority to determine which level of service is consistent with Florida law. The Challenged Rule does not require that local governments accept the levels of service created therein. The Challenged Rule establishes the levels of service that the TBRPC will use in its review and comment on DRI applications. The Challenged Rule also puts developers on notice of the levels of service that TBRPC will base its review of DRI applications on. While a local government must consider the comments of TBRPC, the Challenged Rule does nothing to change the fact that it is up to the local government, after consideration of its comprehensive plan, the State comprehensive plan and the comments of the TBRPC to make the ultimate decision as to whether a DRI application is consistent with State law. Local governments are not required to accept the levels of service contained in the Challenged Rule. Nor is TBRPC, in fulfilling its responsibility to review DRI applications, required by law to only apply levels of service established by local governments in their comprehensive plan. If a local government decides to apply a more strict level of service contained in the Challenged Rule as a result of a comment from TBRPC or as a result of an appeal to FLWAC, the costs associated with the DRI to the local government, including Pasco and the City, could be increased in order to achieve and maintain the higher level of service. Rule 9J-2.0255, Florida Administrative Code. Pursuant to the authority of Section 380.06(23)(a), Florida Statutes, the Department of Community Affairs adopted Rule 9J-2.0255, Florida Administrative Code. Rule 9J-2.0255, Florida Administrative Code, sets out the Department of Community Affairs' policy concerning its role in the review of DRI applications. Rule 9J-2.0255, Florida Administrative Code, establishes the "minimum standards by which the Department will evaluate transportation conditions in development orders for developments of regional impact " As currently in effect, Rule 9J-2.0255, Florida Administrative Code, specifically provides that the Department of Community Affairs, in evaluating a DRI application, will look to the "policies of the local comprehensive plan and Chapter 80 . . ." if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect. Rule 9J-2.0255, Florida Administrative Code, is limited to Department of Community Affairs' evaluations of DRI applications. The Rule does not specify that regional planning councils must utilize the Rule or local government comprehensive plans in their review of DRI applications. The fact that Rule 9J-2.0255, Florida Administrative Code, provides that, after a local comprehensive plan has been adopted and found to be in compliance, the levels of service contained therein will be used by the Department of Community Affairs for its purposes does not cause levels of service established by TBRPC for its purposes to be inconsistent with Rule 9J- 2.0255, Florida Administrative Code. The standards established in Rule 9J-2.0255, Florida Administrative Code, are only designated as "minimum" standards. Nothing in the Challenged Rule requires the use of any standard less that those "minimum" standards even for purposes of TBRPC's review of DRI applications. The Challenged Rule even specifically provides that, to the extent that a level of service contained in a local government's comprehensive plan is more stringent than that contained in the Challenged Rule, that level of service will be applied by TBRPC. When originally adopted in January, 1987, Rule 9J-2.0255, Florida Administrative Code, provided specific transportation levels of service which the Department of Community Affairs intended to use until comprehensive plans containing levels of service were adopted by local governments. The Rule provided, however, that it was not intended to "limit the ability of the regional planning councils and local governments to impose more stringent mitigation measures than those delineated in this rule." Rule 9J-2.0255(8), Florida Administrative Code. This provision is no longer effective. The original rule also did not specifically indicate that levels of service contained in local government comprehensive plans were to be used by the Department of Community Affairs as it now provides. While there was testimony during the final hearing of this matter that the use of different levels of service by TBRPC and the City or Pasco will result in "inconsistent" reviews of DRI applications, there is nothing in Florida Statutes or the Department of Community Affairs' rules that requires consistency in reviews. There was also testimony that such differences will "not promote efficient DRI review." If the Legislature believes the consideration by the TBRPC and local governments of different levels of service in reaching a decision on a DRI application is "inefficient", it has not made its belief clear in Florida Statutes. If the Legislature wants all of the various agencies involved in DRI review to "not disagree" in order to have "efficient" DRI reviews, it must specifically so provide. The Department of Community Affairs reviewed the Challenged Rule. During its review concern was expressed by the then Secretary of the Department of Community Affairs about the inclusion in the Challenged Rule of levels of service. TBRPC was urged "to adopt standards and methodologies for reviewing DRIs that are consistent with those used by the Department of Community Affairs." TBRPC was not, however, told that the use of levels of service consistent with local government comprehensive plans was required by Department of Community Affairs' rules or that the failure of TBRPC to comply with the Department's suggestion would cause the Challenged Rule to be considered inconsistent with Department of Community Affairs' rules. Concern was also expressed during the review of the Challenged Rule to the Department of Community Affairs by the Department of Transportation about possible inconsistencies of the Challenged Rule's levels of service with the Department of Transportation's Rules. Concerns were also raised within the Department of Community Affairs by the Bureau of State Planning. Ultimately, after considering comments from those interested in the Challenged Rule and in spite of the fact that the Department of Community Affairs would prefer that the levels of service used by the Department of Community Affairs, local governments and regional planning councils be the same, the Department of Community Affairs did not conclude that the Challenged Rule was inconsistent with Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule. I. Section 32, CS/CS/HB 2315. On April 4, 1993, Section 32, of CS/CS/HB 2315 (hereinafter referred to as "Section 32"), was enrolled. Section 32, if signed by the Governor, creates Section 186.507(14), and provides: (14) A regional planning council may not, in its strategic regional policy plan or by any other means, establish binding level-of- service standards for public facilities and services provided or regulated by local governments. This limitation shall not be construed to limit the authority of regional planning councils to propose objections, recommendations, or comments on local plans or plan amendments. Section 32 has not yet become law. Additionally, it Section 32 becomes law, it will not be effective until July 1, 1993. Section 32 was filed in this proceeding by BAGT on April 7, 1993, after the final hearing of these cases had closed. Section 32 was not available to the parties until immediately before it was filed by BAGT. Therefore, it could not have been raised at the time of the final hearing of these cases.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Three Creeks Community Development District (Petition) meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue The issue is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Poinciana Community Development District.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. . TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-278 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this 5 OM aay ° , 2009. Paula Ford Agency Clerk By U.S. Mail Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Shannon K. Eller Deputy General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, FL 32202 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
