Findings Of Fact Respondent, Alonzo P. Baggett, owns a residential parcel of property at the corner of State Road 35 (Bartow Highway) and Hollingsworth Road in Lakeland. Respondent's property has his residence on it which was purchased in 1961. When purchased, the property was originally a duplex with a driveway serving each unit. Respondent enclosed the carport on the easterly side of the house for use in an upholstery business. When he did so, the driveway at the easterly end of the house remained in place. The house is presently used as a single family residence and the entrance to what was originally the right hand, or eastern unit, is permanently enclosed with concrete block construction. Respondent resides in the western side of the duplex and parks in the driveway which serves that side. The driveway on the right hand side of his property is approximately the length of one vehicle. The intersection of State Road 35 and Hollingsworth Road is a busy signalized intersection. On an average day, upwards of 8500 vehicles pass through the intersection. State Road 35 is a four lane facility in the vicinity of Respondent's home. Both State Road 35 and Hollingsworth Road have dedicated right and left turn lanes at the intersection. The easterly connection which Petitioner is seeking to close is within the radius of the turn at the southwest corner of State Road 35 and Hollingsworth Road and the access is located in front of a stop bar on State Road 35. To use the subject driveway, a driver must back into the flow of traffic at the intersection to exit the driveway. The connection also allows a driver to make a series of conflicting movements in relation to the traffic in the intersection. As it presently exists, there are no signal heads facing the driveway and a driver cannot see the traffic signals at the intersection. Both conditions create a safety problem because a driver, without seeing the signal head, cannot tell who has the right-of-way. Respondent's State Road 35 connection provides uncontrolled access into a controlled intersection and could present an unexpected traffic movement to drivers entering the intersection from either State Road 35 or Hollingsworth Road. Additionally, the backing motion could conflict directly with the pedestrian crosswalk at that corner. Also, there are two public schools, Lime Street Elementary and Lakeland High School, served by the intersection of State Road 35 and Hollingsworth Road. The driveway in question creates a conflict with school children who cross the road at the intersection. Petitioner has engaged in an extensive review project of resurfacing, signalization, and road upgrades to new standards and has received a number of requests to change sidewalk and curb ramps to comply with ADA standards. The upgrades also included relocating some signal loops and Respondent's driveway came within the loop and upgrading review process. Petitioner has no authority to change the zoning of Respondent's property such that he can resell it to a commercial purchaser as Respondent has requested. Closing the subject driveway is necessary to alleviate the safety problems referenced herein. Although the effect of this intended closure will prevent Respondent's access to his driveway on State Road 35, based on the limited usefulness and the access that he has to his property (the Hollingsworth Road connection), the closure is not arbitrary or unreasonable as Respondent contends. In this regard, Respondent still has access from Hollingsworth Road. That access is safer to use and the signalization from that road can be seen and the traffic flow isn't as heavy as State Road 35.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner, the Department of Transportation, enter a final order closing Respondent's connection to State Road 35 and that such closure be completed by Petitioner at its own cost. DONE AND ENTERED this 19th day of July, 1994, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1994. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Alonzo T. Baggett 605 Hollingsworth Road Lakeland, Florida 33801 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Haydon Burns Building Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450
The Issue The issue is whether the City of Naples' plan amendment adopted by Ordinance No. 03-10305 on December 17, 2003, is not in compliance for the reasons alleged in Collier County's Petition for Administrative Hearing (Petition).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 2003, the City began the planning process to adopt an amendment to its Plan which would restrict, but not prohibit, the construction of traffic overpasses or flyovers within the City. Under the process in place for adopting amendments, a City planner initially drafts a proposed amendment; the draft amendment is presented in the form of a recommendation to the City Planning Advisory Board (Board); and the Board then forwards a recommendation to the City Council for a final decision. On July 2, 2003, the City staff submitted a Report to the Board recommending that a new Policy 1-10 be added to the Plan's Transportation Element, which read as follows: Due to impacts on traffic and aesthetics, the City shall not permit construction of road overpasses or flyovers in favor of alternative planning solutions that will improve the long-term traffic circulation patterns in the City. On July 9, 2003, the Board considered the Report and recommended that the language in the amendment be slightly amended by adding the word "vehicle" before the word "road" to clarify the kind of overpass addressed by the amendment. The Board then submitted a recommendation to the City Council that it adopt the following amendment: Due to impacts on traffic and aesthetics, the City shall not permit construction of vehicle road overpasses or flyovers in favor of alternative planning solutions that will improve the long-term traffic circulation patterns in the City. On October 8, 2003, the proposed amendment was transmitted to the Department for its preliminary review. After reviewing the proposal, on December 12, 2003, the Department issued a two-page letter which served as its Objections, Recommendations, and Comments (ORC) Report. In the ORC, the Department offered three comments regarding the proposed amendment: that the City had not "defined the circumstances under which an overpass or flyover would be allowed by the City"; that "issues of this nature are best addressed through the use of existing intergovernmental coordination"; and that the City was encouraged to resolve this matter through the MPO and other intergovernmental coordination avenues available to the City and County. However, there were no objections to the language in the amendment. (A comment in the ORC is advisory in nature, while an objection represents an assertion by the Department that there are inconsistencies in the proposed amendment.) On November 17 and 21, 2004, the Council submitted letters to the City indicating that it "had no adverse comments" to the amendment. After the City adopted the amendment, though, the Council decided to revise its recommendation to the Department and suggested that the amendment be slightly modified by adding language requiring the City to consider alternative planning solutions "in a timely manner." However, the Council supports the overall substance of the amendment. On December 17, 2003, the City approved the amendment without further changes. The amendment was then forwarded to the Department for its compliance determination. On February 13, 2004, the Department published its Notice determining that the amendment was in compliance. Since 1989, and at a cost of several million dollars, the County has been involved in the planning process for infrastructure needed to alleviate traffic demands at or near the intersection of Golden Gate Parkway and Airport-Pulling Road. One quadrant of the intersection lies within the City; the remaining portion of the intersection lies within the County. During this process, and based on recommendations by outside consultants, the County determined that a vehicle overpass (known as the Golden Gate Overpass) would be the most effective traffic planning solution. Alleging that the new amendment was designed solely for the purpose of prohibiting the construction of that overpass, on March 5, 2004, the County filed its Petition challenging the new amendment. As set forth in the parties' Joint Pre-Hearing Stipulations, the County raises three broad grounds for finding the amendment not in compliance: that the amendment is not based on the best available data and analyses, as required by Florida Administrative Code Rule 9J-5.005(2); that the amendment is inconsistent with other provisions within the Plan; and that the amendment lacks coordination with the County's Plan, in violation of Section 163.3177(4), Florida Statutes. The undersigned has rejected as untimely a contention raised for the first time by the County in its Proposed Recommended Order that the amendment is vague and lacks meaningful and predictable standards.2 Finally, because the Department and the City both contest the standing of the County to bring this action, that issue must also be resolved. Standing To demonstrate standing, the County, as an adjoining local government, must prove that the plan amendment "will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within [its] jurisdiction." § 163.3184(1)(a), Fla. Stat. Therefore, the County must prove that the plan amendment prohibits the construction of the Golden Gate Overpass and that this prohibition will result in the substantial adverse impacts described in the statute. On its face, the amendment restricts, but does not prohibit, the construction of vehicle overpasses within the City. That is, the amendment merely states a preference on the part of the City for "alternative planning solutions" before a vehicle overpass may be permitted. This general expression of policy preferences cannot be read as a blanket prohibition on overpasses, or a specific direction to deny any request by the County that the overpass be constructed. If the amendment is found to be in compliance, the precise manner in which it will be implemented is unknown. These details, however, are not the subject of this dispute. In any event, until the City actually implements the amendment and makes a decision that another alternative planning solution exists, there can be no "substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment," as required by the statute. In support of its standing claim, the County argues that if the amendment is found to be in compliance, the City may implement the amendment in an arbitrary manner. Assuming this to be a legitimate concern, there can still be no "substantial impacts" until a decision is made by the City. The County also points out that in a meeting of the City Council on April 21, 2004, or four months after the amendment was adopted, the City determined that the amendment applies to the Golden Gate Overpass, and that as of that date, the County had still not "satisfied the requirement" that it explore alternative planning solutions. The City did not vote, however, to prohibit the overpass. That post-adoption determination by the City in no way alters the finding that the amendment will not produce substantial impacts on the increased need for publicly-funded infrastructure. As noted above, these impacts, if any, will not occur until the amendment is implemented in a manner adverse to the County's interests. Accordingly, the evidence supports a finding that the County is not an affected person and lacks standing to file this challenge.3 Although this ruling is dispositive of the case, for the purpose of rendering a complete Recommended Order, the County's compliance contentions will be addressed below. The Plan Amendment The goal of the Transportation Element of the Plan is as follows: Provide an efficient, balanced, attractive, and safe multimodal system of transportation facilities in accordance with recognized safety standards, various land use demands and environmental considerations unique to the City of Naples. Under the goal, the Plan contains eight adopted objectives. Objective 1 reads as follows: Protect the character of existing and future residential neighborhoods by maintaining the integrity of the City's identified collector and arterial circulation plan and, where possible, manage traffic flow to protect the residential neighborhoods. Prior to the enactment of the amendment, the Plan contained nine adopted policies to implement this objective. These policies further Objective 1 by requiring that the City ensure the protection of neighborhoods when assessing transportation improvements. For example, street improvements should be evaluated to "protect residential neighborhoods" (Policy 1-1); the City shall "require landscape buffers between residential neighborhoods and arterials" (Policy 1-2); and the City should enhance flow on major roads to divert traffic from "neighborhood collectors and local streets" (Policy 1-4). The amendment adds a tenth policy under Objective 1 to read as follows: Due to impacts on traffic and aesthetics, the City shall not permit construction of vehicle road overpasses or flyovers in favor of alternative planning solutions that will improve the long-term traffic circulation patterns in the City. The new policy is intended to apply to road improvements throughout the City, and not just the Golden Gate Overpass, and would require that "feasible alternative planning solutions" be explored before a vehicle road overpass is permitted. The policy is not intended to act as an absolute prohibition on overpasses in general or any one specific overpass, but only "restricts construction of vehicle road overpasses . . . in the City" if other alternative planning solutions exist. By requiring this type of analysis, the City can further Objective 1 by "protect[ing] residential neighborhoods." Golden Gate Parkway is an east-west arterial roadway that traverses both the City and the County. The County is responsible for maintaining and improving the entire length of Golden Gate Parkway, including that portion lying within the City. Airport-Pulling Road is a north-south thoroughfare that traverses both the City and the County. The two roads intersect around two miles north of the Naples Municipal Airport in the northeastern corner of the City. Three of the four quadrants of the intersection are within the County, while the fourth is within the City. Data and Analysis In the context of the requirement that plan amendments be supported by data and analyses requirement, there are two types of amendments: mandatory and aspirational. A mandatory amendment is one that is required by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. Conversely, an aspirational or qualitative amendment is not required by statute or rule. The most common example of an aspirational amendment is one which prohibits skyscrapers or imposes a height restriction on structures within the boundaries of a local government. The County contends that the plan amendment is not supported by data and analyses, as required by Florida Administrative Code Rule 9J-5.005(2). That rule requires that all policies "shall be based upon relevant and appropriate data and the analyses applicable to each element." When the amendment package was transmitted to the Department on October 8, 2003, it contained no supporting data and analyses. The City's submission, however, was consistent with the Department's long-standing view, supported by the evidence here, that if an amendment is aspirational in nature, it does not require supporting data and analyses. This is because an aspirational amendment is merely a policy choice by a local government which has a limited or cosmetic effect. Or as stated by Department witness Gauthier, Policy 1-10 is "conditional in nature . . . and it would rely on . . . some subsequent analysis and decision-making [by the City]." In other words, "the scenarios and what direction the policy take will really depend on activities and assessments by the City, which happen later." Therefore, it requires little, if any, data and analyses. Here, the restriction on overpasses is an aspirational amendment, and it represents a policy choice on the part of the City that expresses disfavor for overpasses and flyovers and a preference for at-grade improvements. The amendment does not excuse the City from complying with any of the substantive planning requirements imposed by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. The only change accomplished by the amendment is to favor at-grade improvements as the primary way to address level of service standards and access points and other substantive planning requirements. It also represents the City's primary choice when planning for transportation needs with other regional and state entities. Given the nature of the amendment, there is no need for "appropriate and relevant data and analysis" within the meaning of the rule. Notwithstanding the fact that no data and analyses were required, at the time the amendment was adopted, the City had numerous traffic studies indicating that there are often alternatives to overpasses.4 Information was also available which indicated that overpasses can have negative aesthetic impacts on neighborhoods; that overpasses can cause traffic impacts by moving congestion from one intersection to another; and that improvements which improve long-term vehicle flow in the City will also impact the County. Besides the foregoing data, the City had received citizens' concerns about the traffic impacts of intersections and their desire to seek alternatives to overpasses before authorizing one to be built. Assuming arguendo that data are required to support an aspirational amendment, it is at least fairly debatable that the amendment is supported by adequate data and analyses. Consistency With Other Plan Provisions The County next contends that the amendment is inconsistent with portions of the Vision 2005 Work Plan (Vision 2005); certain introductory language in the Future Land Use Element (FLUE); Objective 6 and Policies 2-1, 5-4, and 8-1 of the Transportation Element; Policies 4-5 and 5-8 of the Capital Improvements Element; the Transportation Element Support Document; and the Goal, Objective 1, and Policies 1-2 and 1-6 of the Intergovernmental Coordination Element. All of the cited provisions generally relate to the City's responsibility to provide a safe and efficient transportation system, or they encourage the City to cooperate with the County and other entities in the planning process. For the following reasons, it is at least fairly debatable that Policy 1-10 does not conflict with the above-cited portions of the Plan. Vision 2005 Work Plan Vision 2005 (which was adopted in 1998) is a part of the Plan which identifies "desired future conditions through vision statements," and a "series of action plans [eleven strategies] to carry out this vision." The County contends that the amendment conflicts with Goal 3 and Objective 3-6 of Vision 2005. The cited goal provides that the "City should enhance its cooperative relationship with the County," while Objective 3-6 states that one of the City's objectives is to have "positive opportunities for the County to enhance its motivation to cooperate with the City." The County has failed to show that Policy 1-10 conflicts with the goal or objective in any respect. Therefore, the County's contention is found to be without merit. Future Land Use Element The County next contends that the amendment conflicts with certain language found in the Introduction portion of the FLUE. The precatory portion of the FLUE describes the general purposes of the FLUE, the principal implementation mechanisms, and the broad functions of the goals, objectives, and policies contained therein. There are, however, no goals, objectives, or policies within the Introduction itself. The County asserts that the amendment conflicts with that part of the Introduction which states that the goals, objectives, and policies within the FLUE should provide guidance for future growth and redevelopment based on the Vision 2005 strategy to "strengthen City and County cooperative planning programs." Assuming that consistency with this language is required under Section 163.3184(1)(b), Florida Statutes, there is nothing in Policy 1-10 that conflicts with this vision. Transportation Element The County also contends that the amendment conflicts with Objective 6 and Policies 2-1 and 5-4 of this element. Objective 6 requires that the City "[a]ssure intergovernmental consistency by an annual review of plans and programs with Collier County . . . ." Nothing in Policy 1-10 interferes with this objective. Policy 2-1 requires that, "based on a system wide study," the City "develop an efficient transportation network that encourages the diversion of traffic from local streets to collectors and arterials." Because Policy 1-10 will require system-wide studies to determine whether overpasses, or some other alternative, are the appropriate choice, the amendment is consistent with Policy 2-1. Policy 5-4 provides that [w]ith the cooperation of Collier County's Department of Transportation, [the City shall] limit direct access onto Goodlette- Frank Road from abutting properties by requiring properties fronting other roadways to use those for access where it is a safe alternative to access on Goodlette-Frank Road. This policy routes traffic from properties abutting Goodlette-Frank Road onto other roads. Because the County has failed to show any logical nexus between Policy 5-4 and Policy 1- 10, it is found that Policy 5-4 has no application to this controversy. Finally, Policy 8-1 requires that the City provide support data and analyses to the MPO as necessary to assist in the development of a public transportation system. Because this policy deals with public or mass transportation such as buses, and not vehicle transportation, Policy 8-1 has no application here. Transportation Element Support Document The City next contends that the amendment conflicts with certain language found in the Transportation Element Support Document. That document is attached to the Plan and is designed to fulfill the Transportation Element data and analyses requirements of Florida Administrative Code Rule 9J-5.019. Among other things, the lengthy analyses of the data contains language stating that the intersection for the Golden Gate Overpass is "under Collier County's jurisdiction"; that there will be "increased traffic" in the area of the overpass; that a new interchange to be constructed at Interstate 75 and Golden Gate Parkway (several miles east of the proposed overpass) will generate "heavy traffic"; and that the City "should enhance its cooperative relationship with the County." Assuming that consistency with a support document is required in a compliance determination, the County has not demonstrated that Policy 1-10 conflicts with the cited language. Capital Improvements Element The County also contends that the amendment conflicts with Policies 4-5 and 5-8 in the Capital Improvements Element of the Plan. Policy 4-5 requires the City to Revise the Capital Improvements Program in the future to include projects and programs listed in the Comprehensive Plan which are in addition to those needed to maintain level of service standards or to correct deficiencies if not correctly funded. (Emphasis added). The County contends that the amendment conflicts with the underscored portion of the policy. However, this policy simply requires revisions to the City's capital improvements program to maintain level of service or to correct deficiencies. There is nothing in Policy 1-10 that interferes with the ability of the City to revise its program in the future to satisfy those concerns. Policy 5-8 generally requires that the City coordinate its capital improvements program with all other agencies that provide public facilities to the City and that it participate in the plans of any agency providing public facilities within the City. However, Policy 1-10 does not prevent the City from coordinating its projects with other state agencies, or prevent the City from participating in the plans of other agencies or local governments that provide public facilities. Intergovernmental Coordination Element The County further contends that the amendment conflicts with the Intergovernmental Coordination Element in three respects. First, it argues that because the amendment is inconsistent with the Collier County Plan, it is inconsistent with Objective 1 of this element. That objective requires in part that the City's Plan "should be consistent with the plans of Collier County, the School Board, and other units of government without regulatory authority over land use." Nothing in Policy 1-10 prevents the development of these mechanisms, nor does anything in the policy prevent addressing how the Plan impacts adjacent jurisdictions. Policy 1-2 of the same element requires that the City monitor the County's comprehensive planning efforts to ensure coordination and reduce conflicts between the two local governments. Nothing in Policy 1-10 interferes with those monitoring requirements. Policy 1-6 requires the development of joint planning agreements and land use studies between the County and the City to increase the consistency of land use within two miles of the City/County line. Again, nothing in the challenged policy conflicts with this requirement. Lack of Intergovernmental Coordination Finally, the County contends that because Policy 1-10 "is incompatible with the overpass designated in the Collier County Growth Management Plan, the 1989 interlocal agreement, [and] the Grey Oaks PUD, DRI, and DO," it violates Section 163.31771(4)(a), Florida Statutes. That statute essentially requires that there be "coordination" between the City's Plan and the comprehensive plan of the County (and other adjoining local governments, if any). The City provided a copy of the amendment to the County and received no objections. Moreover, nothing in Policy 1-10 changes either the objectives of the City to coordinate its Plan or the policies that define the relationship of the Plan to the plans of other local governments. While the City and the County may disagree over whether an overpass should be built, there is no evidence that Policy 1-10 affects the intergovernmental relations structures established by the two comprehensive plans. Stated differently, Policy 1-10 does not alter or remove objectives and policies in the Plan regarding coordination with the comprehensive plans of adjoining governments, nor does it conflict with the County's Plan, the MPO, or interlocal agreements of adjoining governments. In the same vein, the County argues that the City cannot express a preference for at-grade improvements without violating intergovernmental coordination because the overpass is in the MPO and the County's Plan. The inclusion of a project in the MPO and County's Plan, however, does not compel the City to accede to the project or risk inconsistency with the intergovernmental coordination provisions of its own Plan. See Department of Community Affairs et al. v. City of Fort Myers, Case No. 89-2159GM, 1992 WL 880106 at *31 (DOAH Jan. 7, 1992, Admin. Comm. April 8, 1992). Other Contentions All other contentions raised by the County not discussed herein or in the Endnotes have been considered and rejected as being without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 03-2003-45 on December 17, 2003, is in compliance. DONE AND ENTERED this 24th day of August, 2004, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2004.
The Issue Whether Martin County Comprehensive Plan Amendment 14-6, adopted by Ordinance No. 965 on December 16, 2014, is "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact The Parties and Standing Petitioner, Martin County Land Co. (Petitioner), owns real property and operates a business in Martin County. Respondent, Martin County (Respondent or County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. On December 16, 2014, the County adopted Comprehensive Plan Amendment 14-6 (the Plan Amendment), which proposes to revise Chapters 2, 4, 10, and 11 of the County's Comprehensive Growth Management Plan (Comprehensive Plan). Petitioner submitted written and oral comments to the County concerning the Plan Amendment during the period of time between transmittal and adoption of the Plan Amendment. Background and Existing Conditions The County's original Comprehensive Plan was adopted in 1990 and was challenged by the Department of Community Affairs (DCA) as not "in compliance." Since its inception, the Comprehensive Plan has been the subject of substantial litigation, most of which has little relevance hereto. At least once every seven years, local governments are required to undertake an evaluation and appraisal of their comprehensive plans. See § 163.3191(1), Fla. Stat. During this evaluation, local governments must amend their plans to reflect changes in state requirements. See § 163.3191(2). The statute also encourages local governments to comprehensively evaluate changes in local conditions, and, if necessary, update their plans to reflect said changes. See § 163.3191(3). Local government plan amendments made pursuant to section 163.3191 are commonly referred to as "EAR amendments." The County adopted its most recent EAR amendments in 2009, following an evaluation and appraisal of the Comprehensive Plan and changes in state requirements. The 2009 EAR amendments were challenged by a number of parties as not "in compliance." Administrative challenge to the EAR amendments concluded, and the amendments became effective, in 2011. One of the signature features of the County's Comprehensive Plan is the urban service districts (USDs). The USDs were created as part of the Comprehensive Plan after 1990. The purpose of the USDs is to regulate urban sprawl by directing growth to areas where urban public facilities and services are available, or programmed to be available, at appropriate levels of service. The County refers to this approach as an "urban containment policy." Public urban facilities and services are defined by the Comprehensive Plan 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." Notably, neither package wastewater treatment plants (package plants) nor onsite wastewater treatment systems (septic systems) are included within the definition of public urban facilities. Commercial, industrial, and urban-density residential development, as well as future development requiring public urban facilities, are concentrated within the primary USD. With few exceptions, development within the primary USD is required to connect to regional wastewater systems. The existing Comprehensive Plan allows interim development on package plants only if the developer agrees to connect to regional wastewater systems when those systems become available. With very limited exceptions, septic systems are not permitted for new residential development within one-quarter mile of a regional wastewater system. Rural development at one unit per two acres (one/two acres) and estate development not exceeding one unit/acre are concentrated in the secondary USD where a reduced level of public facilities are programmed to be available at appropriate levels of service. A minimum lot size of one-half acre applies to all development. Regional sewer service may be extended to serve residential properties exceeding the one-half acre minimum lot size, and where lot sizes are inappropriate for septic systems. Development outside the USDs is limited to low- intensity uses, including Agricultural (not exceeding one unit/20 acres), Agricultural Ranchette (not exceeding one unit/five acres), and small-scale services necessary to support rural and agricultural uses. Some residential estate development is allowed on the fringe of the USDs at one unit/acre. Regional sewer service may not be extended outside the USDs, and package treatment plants are allowed only to serve a limited category of commercial development titled "Expressway Oriented Commercial Service Centers." The existing Comprehensive Plan does not establish a standard septic system flow rate. The County follows the state standards established in Florida Administrative Code Rule 64E- 6.008, which provide for a residential rate of 10,000 gallons per day (gpd) and a rate of 5,000 gpd for non-residential uses. Expressway-Oriented Transit Commercial Service Centers In 1985, in anticipation of the construction of Interstate 95 (I-95) through the County, the County created an overlay land use category, Expressway-Oriented Transient Commercial Service Centers (Expressway Nodes), "to recognize the immediate and unique needs of the public traveling through the County." The overlay is limited to the I-95 interchanges with County Road 714 (CR 714 or SW Martin Highway), located in the northern central area of the County; CR 76 (CR 76 or Kanner Highway), located in the western urbanized area of the County; and CR 708 (CR 708 or SE Bridge Road), located in the southwestern area of the County. The overlay is not self-implementing. Future Land Use Element (FLUE) Policy 4.13.A8(5), governing Expressway Nodes, includes a number of requirements for a proposed development to qualify for the designation. Notably, an applicant for development at one of the nodes must submit a market feasibility analysis demonstrating need by the traveling public for the proposed services, submit a Planned Unit Development (PUD) zoning application, and fully fund all urban services needed to serve the development. Further, no Expressway Node will be approved outside the primary USD unless the developer provides shared water and wastewater facilities for all subsequent development at the same interchange. To qualify, the development parcel must be a minimum of five gross acres, directly accessible from a major arterial roadway, and located in whole within 1,320 feet of an access ramp and within 1,320 feet of the intersecting arterial roadway. Unless proven safe through an engineered traffic study, the access point may not be closer than 660 feet from an access ramp. Of the three interchanges, only Kanner Highway, and that portion of SW Martin Highway east of the I-95 interchange, are designated major arterial roadways. Southeast Bridge Road and SW Martin Highway west of the interchange, are minor arterial roadways. The County must amend its Comprehensive Plan in order to reclassify a minor arterial to a major arterial. A roadway is typically reclassified from minor to major arterial when some threshold of traffic volume (based on trip counts) is achieved. No evidence was introduced to establish the particular threshold which distinguishes a minor from a major arterial. No evidence was introduced to establish the length of time for which the segment of SW Martin Highway east of the interchange has been classified a major arterial, thus meeting a primary threshold for Expressway Node development of the eastern quadrants of the interchange. Of the three interchanges, commercial services for the traveling public are located only at Kanner Highway. The interchange hosts at least three gas stations, a variety of fast-food and dine-in restaurants, and two hotels. Commercial services for the traveling public are available at the I-95 interchange at Indiantown Road in Palm Beach County, 16 miles to the south of the Kanner Road interchange. Services are also available 18 miles north of Kanner Road at the I-95 interchange at Gatlin Boulevard in St. Lucie County. Services for the traveling public are also available at a rest stop on I-95 in Martin County. Petitioner challenges, on several grounds, the deletion of FLUE Policy 4.13.A8(5), which provides for the Expressway Nodes overlay category. Data and Analysis First, Petitioner argues the deletion of FLUE Policy 4.13.A8(5) is not supported by data and analysis, as required by section 163.3177(1)(f). That section requires plan amendments to "be based upon relevant and appropriate data and an analysis by the local government that may include . . . surveys, studies, community goals and vision, and other data available at the time of adoption" of the plan amendment. Id. The Expressway Nodes designation pre-dates adoption of the USDs in 1990. The I-95 interchanges at SW Martin Highway and Bridge Road are located outside the USDs and the property at those intersections is designated for Agricultural land use. Thus, commercial development at those interchanges is inconsistent with the County's urban containment strategy and is an exception to the prohibition of urban uses outside the USDs. Further, SE Bridge Road functions as a minor arterial roadway, a designation which has not changed in the 30 years since the Expressway Nodes category was created. As such, the interchange does not qualify for commercial development under the restrictions of the policy itself. The same is true of SW Martin Highway west of I-95. While SW Martin Highway is a major arterial east of the I-95 interchange, no developer has come forward with a proposal to develop any service business at that interchange. According to historic traffic counts from the I-95 interchanges at both Kanner Road and SE Bridge Road, traffic has generally increased both northbound and southbound on I-95. Between 1998 and 2013, average annual daily trips (AADT) increased by 30,000 on I-95 southbound from Kanner Highway and 14,500 southbound from SE Bridge Road. In that same period, AADT trips eastbound on Kanner Highway increased by 16,500, and eastbound on SE Bridge Road by 1,700. Similar increases in trip counts occurred at the interchange ramps between 2009 and 2013. At Kanner Highway, AADT counts on the northbound off ramp increased by 2,000, southbound off ramp by 1,000, northbound on ramp by 600, and southbound on ramp by 1,800. According to the Petitioner's expert, this general trend will eventually lead to congestion of the service facilities at Kanner Road, which will cause motorists to either skip the Kanner Road exit altogether, or return to I-95 in search of another exit with the needed services. The data indicate similarly-increased AADTs at the I-95 interchange at Indiantown Road, the next interchange south of Kanner Road where services and facilities are available to the traveling public. Petitioner's expert likewise concluded that services at the Indiantown interchange are "pretty much maxed-out" and would likely also become congested in the future. AADT trip counts are data which were readily available to the County from the Department of Transportation (DOT) when the Plan Amendment was adopted. Petitioner argues that the Plan Amendment ignores this readily-available data by deleting the Expressway Nodes category. Petitioner's argument assumes a couple of factors. First, it assumes the County has an obligation to provide services to the public traveling through the County. Neither the Comprehensive Plan, nor the Community Planning Act, requires the County to provide said services. Second, it assumes that increased traffic counts through the interchanges directly correlate with increased demand on the services located there. Petitioner introduced no evidence to support this assumption. Increased trips through the interchange could be attributed to increased employment in the urbanized area of the County from residents in Palm Beach or St. Lucie Counties, or from rural areas within Martin County. The County's witnesses agreed that I-95 traffic counts would be relevant to the County's determination to delete the Expressway Nodes designation. However, the evidence does not support a finding that retaining the Expressway Nodes overlay is the only appropriate reaction to that data. Assuming Martin County was required to provide services to the traveling public, Petitioner did not establish the capacity of said services needed to serve the public, thus requiring the County to maintain the overlay. With the exception of hotel services, Petitioner introduced no evidence regarding a level of service or the utilization rate of the services provided at either the Kanner Road or Indiantown interchanges. With regard to hotels, Petitioner introduced hotel occupancy rates published by Smith Travel Data, a hospitality- industry source of statistics on occupancy and vacancy rates. In March 2015, excluding the beach hotels, the County hotels had an aggregate occupancy rate of 92 percent. The average annual occupancy rate of County hotels is in excess of 72 percent. Elimination of the Expressway Nodes overlay is supported by the County's urban containment strategy, as well as its history relative to package treatment plants. The SW Martin Highway and SE Bridge Road interchanges are outside the primary USD where regional sewer service is available. As long as they remain outside the primary USD, the option for wastewater treatment at those locations is limited to package treatment plants. The County has a clear policy prohibiting new package treatment plants. Existing FLUE Policy 4.7A.4 prohibits all package treatment plants outside the USDs except to serve development at the Expressway Nodes. Development at the Expressway Nodes is the only exception to the prohibition. The Plan Amendment deletes FLUE Policy 4.7A.4, thus eliminating the exception to the prohibition on package treatment plants, which prohibition is preserved elsewhere. In 1984, when John Polley, now Director of Utilities and Solid Waste, began working for the County, there were 89 private package treatment plants. In 1990, the County began a campaign to eliminate package treatment plants. Fifty-three package treatment plants were eliminated after being identified as threats to the Indian River Lagoon, pursuant to the Indian River Lagoon Act. Another 17 were eliminated because they did not comply with Department of Environmental Protection (DEP) standards, or had become mechanically obsolete and prone to failure. The County has focused on extending sewer service in the primary USD in order to reduce the need for new package treatment plants to serve development. By 2006, the County had eliminated 70 package treatment plants. There are only 19 package treatment plants in the County, and few, if any, have been approved and permitted in the County since 1990. Existing FLUE Policy 4.7C.2 is titled "Evaluation of urban uses near I-95 interchanges," and requires the County to "have completed an evaluation of potential urban uses in the vicinity of the I-95 interchanges with CR 708 and CR 714" by 2012-2013, and requires that "[t]he results of these studies shall be incorporated into the [Comprehensive Plan] via Plan Amendment." The Plan Amendment deletes FLUE Policy 4.7C.2. Martin County Principal Planner, Samantha Lovelady, produced a memorandum on Expressway Nodes in support of the Plan Amendment. The memorandum does not state that it was prepared to implement FLUE Policy 4.7C.2, nor did Ms. Lovelady testify that she prepared it pursuant to that policy. To the extent that the memorandum "evaluates potential urban uses" at the specified intersections, it concludes that the services at Kanner Highway, the rest area on I-95, and services available along I-95 just north in St. Lucie County and just south in Palm Beach County, all of which developed since the policy was adopted in 1985, have rendered the designation unnecessary. The memorandum concludes that the "original goal of this policy [to provide services to the public traveling through the County on I-95] has been achieved." FLUE Section 4.2.A(9)(b) of the Comprehensive Plan finds that based on an evaluation of the Future Land Use Map (FLUM) in 2009, the "raw data appear to show a significant deficit of commercial land necessary to accommodate economic needs." Further, the section provides, "[a]ny attempt to remedy the deficits should be based on geographic area in order to reflect sustainability principles and provide population centers with necessary services in an orderly and timely fashion." Petitioner argues the County deleted the Expressway Nodes overlay despite this data showing a deficit of available commercial property. The lands within the Expressway Nodes overlay have a FLUM designation of Agriculture, not Commercial. Further, there are several preconditions necessary for any of the property at those interchanges to be developed for commercial use, including a market demand study, PUD rezoning approval, and in the case of SE Bridge Road and SW Martin Highway west of the interchange, a required plan amendment to reclassify those roadways as major arterials. The evidence does not support a finding that elimination of the Expressway Nodes overlay would remove property from the County's commercial land use inventory. Furthermore, this section speaks to providing necessary services to "population centers." Neither of the I-95 interchanges at SE Bridge Road or SW Martin Highway is a population center. Internal Consistency Petitioner further challenges elimination of the Expressway Nodes as contrary to section 163.3177(2), which requires all elements of a comprehensive plan to be consistent with each other. Petitioner alleges that the Plan Amendment creates an inconsistency with FLUE Goal 4.2 "[T]o alleviate the negative impacts of inadequate public facilities and services and substandard structures for affected areas in the County." Petitioner's expert testified that removal of the Expressway Nodes designation will result in a lack of facilities to meet the needs of future travelers "as demand begins to evolve." The objectives and policies implementing FLUE Goal 4.2 speak directly to areas in need of redevelopment, including creation of Community Redevelopment Areas. There is no evidence to support a finding that the SW Martin Highway and SE Bridge Road interchanges are areas in need of redevelopment. Next, Petitioner contends the Plan Amendment is inconsistent with FLUE Policy 4.7A.5, which provides, in pertinent part: Policy 4.7A.5. Development options outside urban service districts. Martin County shall provide reasonable and equitable options for development outside the urban service districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. A small-scale service establishment shall be defined as a small, compact, low intensity development within a rural area containing uses and activities which are supportive of, and have a functional relationship with the social, economic and institutional needs of the surrounding rural areas. Petitioner's expert provided only conclusory testimony that the removal of the Expressway Nodes designation is inconsistent with this policy. FLUE Policy 4.7A.5 requires the County to allow some opportunity for development outside the USDs. There is no evidence on which to base a finding that the Expressway Nodes designation is the only allowance for development outside the USDs, thus removal of the designation does not conflict with this policy. Further, the Expressway Nodes designation, by its plain language, was created to serve the needs of the public traveling through the County. Deletion thereof does not conflict with a policy requiring some development to serve the needs of rural residents and businesses. FLUE Goal 4.8 requires of the County, as follows: To encourage energy conservation and promote energy-efficient land use and development that implements sustainable development and green building principles. Petitioner contends the Plan Amendment is inconsistent with this goal because travelers faced with congested facilities will travel further into the County along the intersecting roadways to find the desired services, thus increasing traffic and travel times, as well as use of hydrocarbons. The expert's testimony on this issue conflicts with his opinion that travelers faced with congested interchanges will either skip the interchange altogether, or re-enter I-95 to look for services at another interchange. On this issue, the expert's opinion is not accepted as credible. It is unreasonable to assume that a traveler would exit I-95 at an interchange which advertises no services and travel some distance on the crossroad in search of said services. Further, Goal 4.8 is implemented by objectives and policies which provide guidance for the County's land development regulations and which encourage green building standards and renewable energy resources. Petitioner appears to be taking the goal out of context. Finally, Petitioner cites FLUE Goal 4.10 and Policy 4.10B.2 as inconsistent with the Plan Amendment. The provisions read as follows: Goal 4.10. To provide for adequate and appropriate sites for commercial land uses to serve the needs of the County's anticipated residents and visitors. * * * Policy 4.10B.2. Criteria for siting commercial development. Commercial development shall be strategically directed to areas best able to accommodate its specific requirements of land area, site, public facilities and market location. The aim is to promote efficient traffic flow along thoroughfares, achieve orderly development and minimize adverse impacts on residential quality. Members of the public traveling through the County to other destinations are neither anticipated residents of, nor anticipated visitors to, the County. The Expressway Nodes designation was created to serve the "immediate and unique needs of the public traveling through the County." At hearing, Petitioner argued that the Plan Amendment was also inconsistent with provisions of the Economic Development Element of the County's plan. Inasmuch as Petitioner did not plead that issue in its Petition for Formal Administrative Hearing, the undersigned does not make any findings relevant thereto.3/ Balance of Uses Section 163.3177(1) provides, in pertinent part, as follows: The comprehensive plan shall provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements. This section applies to the County's Comprehensive Plan as a whole. No evidence was introduced to support a finding that the Comprehensive Plan, as a whole, fails to provide principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the County. Section 163.3177(6)(a)4. provides as follows: The amount of land designated for future planned uses shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities and address outdated development patterns, such as antiquated subdivisions. The amount of land designated for future land uses should allow the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business and may not be limited solely by the projected population. The Plan Amendment does not change the amount of land designated for any particular FLUM category. The Plan Amendment makes no change to the FLUM. Assuming, arguendo, that elimination of the Expressway Nodes overlay changes the amount of land designated for commercial use, that single change does not render the Comprehensive Plan out of balance or unable to foster vibrant, viable communities. The public traveling through Martin County to other destinations are neither permanent nor seasonal residents or businesses. Wastewater Treatment Options The Plan Amendment makes a number of changes in the wastewater treatment options available to serve development in the County. Within the primary USD, FLUE Policy 10.1A.2 requires all new subdivisions of less than one acre to be served by regional sewer. Under the existing Comprehensive Plan, only new subdivisions within the primary USD exceeding two units/acre must connect to regional sewer systems. FLUE Policies 4.7B.1 and 10.1A.2 prohibit the extension of regional sewer service into the secondary USD. Thus, new development in the secondary USD is limited to septic service (because package treatment plants are eliminated in another section of the Plan Amendment). FLUE Policy 10.2A.7 increases the threshold size of lots within new subdivisions which may be developed on septic systems. Where the existing Comprehensive Plan allows new subdivisions of half-acre lots to develop on septic, the Plan Amendment requires a minimum one-acre lot. Further, new development qualifies only if it is more than one-quarter mile from regional sewer system collection or transmission lines. Within the primary USD, approximately 100 undeveloped lots are located more than one-quarter mile from a connection point to the County's regional sewer service. FLUE Section 10.2.B prohibits development within the USDs on septic systems where regional sewer systems are available (i.e., within one-quarter mile of a regional service line). The same policy limits development on septic systems outside the USDs to "low density residential as permitted by the underlying future land use designation and small scale service establishments necessary to support rural and agricultural uses." FLUE Policy 10.1C.4 prohibits approval of development orders "where adequate water and sewer facilities cannot be provided." Similarly, FLUE Policy 10.1A.10 provides that development "shall not be approved where adequate regional water and sewage facilities cannot be provided, unless the development can meet the requirements for a [septic] system found in Policy 10.2A.7." Finally, FLUE Policy 10.2A.8 limits the maximum flow of septic systems to 2,000 gpd per lot. Taken together, the changes generally limit the type and density of future development allowed in the County. Within the primary USD, the Plan Amendment requires more dense development to connect to regional sewer systems while limiting use of septic systems to the lowest density development. Overall, the Plan Amendment encourages higher density future development and prioritizes regional service. These changes are consistent with the County's existing "urban containment policy" concentrating urban development within the primary USD. In the secondary USD, the Plan Amendment restricts future development to low density (one-acre lots) where regional service is not available within one-quarter mile, and requires all future development within one-quarter mile to connect. These changes have little practical effect because most of the secondary USD is slated for future development at a rural density of one unit/two acres, with some estate densities at one unit/acre. Outside the USDs, the Plan Amendment limits future development to low density residential, and limited commercial development to serve rural and agricultural needs, on septic systems. Petitioner's challenge focuses primarily on, and the majority of evidence introduced related to, the 2,000 gpd limit on septic tank flow. Petitioner challenges FLUE Policy 10.2A.8 and Section 10.2.B.2 on a number of grounds, each of which is taken in turn. Data and Analysis Section 163.3177 requires plan amendments to "be based upon relevant and appropriate data and an analysis by the local government." The statute provides, "[t]o be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of" the plan amendment at issue. Id. Further, "data must be taken from professionally accepted sources." § 163.3177(1)(f)2. The statute does not require original data collection by local governments. A septic system flow rate is the liquid flow rate of non-solid wastes (effluent) coming out of the residential or non-residential septic system after initial treatment. Septic systems are typically sized based on the flow rate. When the Comprehensive Plan was first adopted in 1982, the County adopted a maximum flow rate of 2,000 gpd. The 2,000 gpd standard was also the standard for the State of Florida at the time it was adopted by Martin County. In 1993, the Legislature amended the state standard to allow maximum flows of 10,000 gpd for all uses. See ch. 93-151 § 1, Fla. Laws. In 1998, the state standard for commercial facilities was reduced to 5,000 gpd, where it remains today. See ch. 98-151, § 7, Fla. Laws. Martin County did not adopt the state standard when it changed in either 1993 or 1998. The County maintained its lower maximum rate based on experience with septic system failures associated with poor maintenance, particularly of larger systems and commercial establishments, such as restaurants. The state standard was adopted by the County in its 2009 EAR amendments, which became effective in January 2011. Thus, the 2,000 gpd standard governed development in Martin County for almost 30 years. Despite the lengthy history of the 2,000 gpd standard in Martin County, the undersigned must find that the 2009 change to the higher state standards were supported by data and analysis since that change was found "in compliance" in 2011. Thus, the 2015 change back to the 2,000 gpd standard must likewise be based on data and analysis. The County identified protection of its ground and surface water bodies from contaminants associated with septic system effluent as the main reason for the change. In response to the Clean Water Act and the Florida Watershed Restoration Act, DEP implemented the Total Maximum Daily Load (TMDL) program. The program identifies water bodies which are "impaired" for a particular pollutant (i.e., exceeds the water body's capacity to absorb the given pollutant and still function for its designated use), and requires development of Basin Management Action Plans (BMAPs) to restore impaired waters. There are 32 impaired water bodies in Martin County. Among them are the St. Lucie Estuary and the Indian River Lagoon, which is part of the estuary. Both the estuary and the lagoon are impaired for nitrogen, among other contaminants. The lagoon is a brackish-water environment in which phosphorus occurs in high levels. The growth of algae and other microorganisms is limited in that environment by the availability of nitrogen in the ecosystem. Nitrogen is a "limiting factor." When too much nitrogen is present, algae and other microorganisms become overgrown. An overgrowth of algae consumes excessive amounts of oxygen and dissolved oxygen in the marine environment, a primary indicator of water quality. DEP adopted the TMDL for total nitrogen demand for the estuary in March 2009. The BMAP developed for the estuary includes both construction of stormwater management projects and conversion of particularly-identified developments from septic systems to regional wastewater service. In March 2013, the County identified first priority stormwater projects at a cost of $15,790,000, and second priority projects at a cost of $17,990,000. The County also identified ten subdivisions to prioritize for conversion from septic to sewer service at a cost of $88,140,000. Together with identified flood control projects, in 2013, Martin County estimated a grand total of $142,445,000 in projects to implement the BMAP. The County has extended sewer service to approximately 1,800 properties, converting approximately eight developments from septic to sewer service. Effluent from septic systems is only one source of nitrogen pollution to surface water bodies. Agriculture (from both fertilizer and animal waste), residential fertilizer, pet waste, and "atmospheric" nitrogen, are other sources of nitrogen pollution. A 2009 study by the Department of Health concluded that management of nitrogen sources, including septic systems, "is of paramount concern for the protection of the environment."4/ Initial treatment of raw wastewater occurs in the septic tank chamber, where solids settle to the bottom and liquids are separated from the solids. In this anaerobic (absent oxygen) state, the wastes are converted mainly to ammonia and ammonium (inorganic nitrogen). Septic tank effluent is then discharged to a drain field where nitrification occurs in an aerobic environment. Nitrification converts ammonium to nitrates in oxygen-rich unsaturated soils. Soils do not absorb nitrates, and much of the nitrates migrate to ground and surface waters causing contamination. If nitrogen remains in the oxygen-rich soil, it can be converted to nitrogen gas and eliminated through the atmosphere through the denitrification process. Carbon and other minerals must be present in the soil for denitrification to occur. Denitrification is also a slow process that occurs only in the vata zone, the oxygen-rich soil between the bottom of the drainfield and the top of the water table. The data and analysis, as well as the testimony presented at the final hearing, conflicted on the issue of how much nitrogen is removed from septic tank effluent through denitrification in Southeast Florida, where soils are well- drained, but the water table fluctuates seasonally. In September 2013, a study prepared for DEP estimated the amount of nitrogen load from removed septic systems to surface water bodies in Martin County, as well as the cities of Stuart and Port St. Lucie. The study "shows that the load estimates are strongly correlated with nitrogen concentrations in surface water quality data, suggesting that septic load is a significant factor for water quality deterioration."5/ In Martin County, where septic system removal was small scale, the study traced a majority of the removed nitrogen to specific water bodies.6/ The study found that the amount of nitrogen load is controlled by three factors: (1) length of flow path; (2) flow velocity; and (3) drainage conditions. The following excerpt is instructive: Figure ES-4 shows that the load estimate decreases with the mean length of flow paths; the two largest loads per septic system are for North River Shores and Seagate Harbor [in Martin County] where the flow paths are the shortest. . . . This is reasonable because longer flow paths result in more denitrification and thus smaller load estimate. In line with this, larger flow velocity corresponds to shorter travel time and thus smaller amount of denitrification and larger amount of load. . . . Figures . . . indicate that the setback distance should be determined not only by the distance between septic systems to surface water bodies but also by groundwater flow conditions (the distance probably plays a more important role here). The groundwater flow conditions are closely related to soil drainage conditions at the modeling sites. An October 2013 paper by Kevin Henderson, P.E., reviewed four studies between 1993 and 2011, and concluded that "[n]one of the studies are specific enough to [Southeast Florida] soils/groundwater aquifer to be definitive as regards nitrate nitrogen's fate once it becomes part of groundwater below a drainfield."7/ Henderson maintains that the Southeast Florida groundwater aquifer is low-flux. Henderson further reported that studies have shown that anticipated nitrogen and total nitrogen groundwater contamination "is consistently absent at distances of more than 40 feet from drainfields."8/ The County's soil and water expert, Catherine Riiska, disagreed, maintaining the Southeast Florida water table is seasonally-dependent, and fluctuates greatly between the wet and dry seasons. During the wet season, Ms. Riiska explained the drainage system is insufficient to keep the water table low during the rainy season. When the water table is high, there is little opportunity for denitrification and nitrates can be pulled directly into the water flow. While the experts disagreed as to how much nitrogen may be removed from septic tank effluent in Southeast Florida, the experts agreed that limiting the amount of potential flow from septic tanks will limit the amount of potential discharge, especially in the event of a failure of the system. Petitioner contends that the 2,000 gpd standard does not react appropriately to the data and analysis because it does not take into account factors other than effluent volume that contribute to total nitrogen loading from septic systems, such as distance to surface water bodies and size of area served by the septic system. The 2,000 gpd standard applies equally throughout the County regardless of location in proximity to surface water bodies. Septic systems can be regulated based on either flow or loading. Loading would be expressed in gallons per measure of property, such as gallons per acre per day. The County's Director of Utilities and Solid Waste, John Polley, agreed that, in terms of environmental impact, loading is a superior measure to flow rate. The County is not required to adopt the superior measure for environmental protection, but to adopt a measure which is supported by data and analysis. Finally, Petitioner contends that the 2,000 gpd standard is not based on data and analysis because it was chosen arbitrarily, without considering some less restrictive flow limit such as 3,000 gpd or 4,000 gpd. The 2011 change from the 2,000 gpd flow limitation to the higher maximum state standard was not supported by the Martin County Health Department. Robert Washam, a retired Environmental Administrator for the Martin County Health Department with more than 30 years' experience permitting and regulating septic systems in Martin County, testified and submitted in writing to the County as to his support for the change to 2,000 gpd. He iterated several reasons for his support, including the serious public health and environmental issues that can result from the failure of large septic systems; the documented failures of large systems inside the primary USD resulting in raw sewage flowing into wetlands, ditches, and eventually rivers; and the unsuitable soils and water table conditions for large septic systems in rural areas of the County.9/ Section 381.0065(4)(e) provides as follows: (e) Onsite sewage treatment and disposal systems must not be placed closer than: Seventy-five feet from a private potable well. Two hundred feet from a public potable well serving a residential or nonresidential establishment having a total sewage flow of greater than 2,000 gallons per day. One hundred feet from a public potable well serving a residential or nonresidential establishment having a total sewage flow of less than or equal to 2,000 gallons per day. Fifty feet from any nonpotable well. Petitioner's wastewater expert, Richard Creech, acknowledged in his testimony that these thresholds reflect that there is an opportunity for contamination of the public water wells by the larger septic systems. Mr. Creech also agreed that, if a septic system is not properly maintained, functioning, designed, and sited, it may present a problem to surface waters. Petitioner did not prove that the 2,000 gpd standard would not protect ground and surface waters from nitrogen loading. That issue is clearly a subject of fair debate. Balance of Uses/Operation of Real Estate Markets Section 163.3177(1), provides, in pertinent part: The comprehensive plan shall provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements. This section applies to the County's Comprehensive Plan as a whole. No evidence was introduced to support a finding that the Comprehensive Plan, as a whole, fails to provide principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the County. Section 163.3177(6)(a)4. provides that the amount of land designated for future planned uses "shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities and address outdated development patterns." Petitioner contends the County failed to consider the economic impact of reducing the septic system flow rate to 2,000 gpd. Petitioner introduced no evidence regarding the effect of the 2,000 gpd limit on the future economic development of the County, only that the County failed to conduct economic analysis thereof. While the County conducted no formal economic analysis of the change, the County clearly considered the effect of that limit on type and size of future development in the County. The 2,000 gpd flow limitation was not a significant development constraint during the nearly 30 years that it was in effect. Septic system size determinations are governed by Florida Administrative Code Rule 64E-6.008. The rule associates a specific gpd rate for each type of commercial, industrial, and residential establishment, based on factors such as the number of seats or patrons, number of employees, and number of bedrooms. A four-bedroom home up to 3,300 square feet can be developed on a septic system with a 400 gpd flow rate, well within the 2,000 gpd flow established under the Plan Amendment. A 2,000 gpd flow rate will accommodate a 650-seat church without regular meal service (or 580 seats with weekly meal preparation), a 200-room hotel, and a 13,000 square foot office building. The substantial expansion of the County's regional wastewater system inside the primary USD has reduced the prospective amount of future development on septic systems. Approximately 100 acres designated for non-residential use are beyond one-quarter mile from sewer availability from Martin County. All other future non-residential development in the primary USD will be unaffected by the septic system flow limitation. The flow limitation does not prohibit more intensive non-residential development in the primary USD. Rather, it encourages developers to expend funds to connect to the regional system so that increased intensity may be obtained. The flow limitation will have limited, if any, impact on the balance of allowable uses in the secondary USD. The low densities and the lack of any approved commercial uses in that District make higher septic flows unnecessary. The same is true for areas outside the USDs, where future development is limited to agricultural, very low density residential (one unit/20 acres), and some minor commercial land uses. Higher flow septic systems are also unnecessary in that area. Based on concerns expressed by agricultural interests during the adoption process, the Plan Amendment allows agricultural uses to exclude consideration of a septic system associated with a residence on the same site. Thus, the County considered the impact of the flow limitation on the predominant industry in the County. Miscellaneous Issues In its Petition, Petitioner also raised the issue of whether the deletion of FLUE Policy 4.13.A8 is inconsistent with the Future Land Use Map which retains the overlay designation. Petitioner did not present any evidence on this issue. Thus, Petitioner did not prove the allegation beyond fair debate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that Plan Amendment CPA 14-6, adopted by Martin County on December 16, 2014, is "in compliance," as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 1st day of September, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2015.
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. DCA11-GM-072 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 comet copies have been furnished to the persons listed below in the manner described, on this.2 ¢ day of April, 2011. U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Daniel Cox, Esq. Attorney for Roger Bybee PO Box CC Carrabelle, FL 32322-1229 Hand Delivery Matthew Davis Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399 Paula Ford tt Agency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Daniel Hartman, Esq. Attorney for the City of Carrabelle Hartman Law Firm, P.A. PO Box 10910 Tallahassee, FL 32302-2910 Robert Aitkens, Esq. Attorney for Live Oak Ventures, LLC 1827 Powers Ferry Road Building One, Suite 100 Atlanta, GA 30339
