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PROCACCI COMMERCIAL REALTY, INC., OF PROCACCI FINANCIAL GROUP, LTD. vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 95-001759BID (1995)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Apr. 10, 1995 Number: 95-001759BID Latest Update: Jun. 16, 2000

The Issue There are two issues presented by Petitioner, as follows: Was the bid of Intervenor, BDC Deland Ltd., responsive? Was the Respondent, the Department of Health and Rehabilitative Services (HRS), decision to award the bid in this case arbitrary and capricious?

Findings Of Fact HRS issued an invitation to bid (ITB) competitively for Lease No. 590:2438 for approximately 17,568 square feet of office space in Deland, Florida. A three percent variance in the amount of space offered was permitted. The ITB required that all bidders attend a pre-proposal conference because valuable information and explanations would be provided to interest bidders at the conference which were to be complied with by the bidder. Paris and Procacci attended. The requirements included providing 140 assigned (reserved) parking spaces by the bidder for the office's use. See Bid Submittal Form, Page 9 of 25. The requirements contained two provisions directly relating to parking requirements, Paragraphs 11d and 21, and one which is tangentially related concerning compliance with zoning, Paragraph 6. Paragraph 11d provides as follows: Section 11: As part of the bid submittal, bidder are to provide: * * * (d) A scaled site layout showing present location of building(s), location, config- urations and number of parking spaces assigned to the Department, access and egress routes and proposed changes. This is to be drawn to scale. Final site layout will be a joint effort between the Department an lessor to meet the needs of the Department. (Emphasis supplied.) Paragraph 21 provides as follows: Section 21: Parking: For this facility the Department has determined that a minimum of 140 parking spaces are required to meet its needs. This parking is to be under the control of the bidder, off street, suitably paved and lined. This parking is to be provided as part of the lease cost to the Department. Lessor will grant to the lessee an exclusive right to use 140 parking spaces. Lessor shall submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants. (Emphasis supplied.) * * * Bidder Response: Parking Being Bid Exclusive spaces available on site. See attached site plan. Non-exclusive spaces available on site. Exclusive spaces off site located from the proposed facility (Distance) Bidder must provide recent evidence of control of all parking spaces being proposed. Permis- sion to park is not control. The provisions of Section 21 were included in the lease because HRS had previously had bad experiences with parking availability. Parking, as evidenced by the requirement for a site plan and certificate to be submitted with the proposal, was an important and material provision of the lease. Both Paris and Procacci submitted bid proposals, including site plans, which were deemed responsive by HRS. HRS considered the proposals of both Paris and Procacci, and performed site visits to both properties. In addition, the evaluators were familiar with both properties. Paris's bid was evaluated to be the lowest and best bid, and HRS noticed the bidders of its intent to award the bid to Paris. At that point, Procacci asserted to HRS that Paris' proposal was deficient because it did not meet the parking requirements in terms of the quantity of parking spaces Paris could provide based upon its submittal because of the zoning requirements and impact of the "out parcels" indicated on the site plan which had been submitted. After being contacted by Procacci, HRS inquired of Paris, pursuant to the terms of the RFP, if it was sure it could provide the parking as required and comply with local zoning. HRS also inquired about the status of the out parcels. Paris advised that, although it had intended to try and develop the areas marked as out parcels, it did not have contracts to develop these areas, and that Paris understood that it could provide the number of parking spaces required to HRS and current and future tenants within the local zoning provisions. HRS, through its counsel, checked with the local zoning official, and was advised that Paris had enough space on site to provide parking spaces complying with local codes for HRS, current tenants, and future tenants. The zoning official's estimates were based upon general assumptions about the nature of the future tenants which affected the space required for parking; however, these assumptions were generally consistent with Paris' development plan. HRS was also advised that in developing the out parcels, Paris would have to comply with existing codes including the provisions for parking. Paris was the owner in fee simple of the site upon which the proposed leasehold and parking lot were located. At the time the bid was submitted, the property contained 168,000 gross square feet of leasable space, of which, 66,000 gross square feet were leased to Belk Lindsey, Dollar General, Community Dialysis, a coin laundry, the DeMarsh Theatre, and the Department of Labor. The property had vacant 101,000 gross square feet of which 18,005 gross square feet were being offered to HRS. The existing leases included governmental uses, commercial uses, medical uses, and a theater. The total area of medical uses is limited to medical clinic and the Dialysis Center which had 5,184 square feet. (Only the portion of the Health Department which is clinic is treated as medical office space, and the remainder is treated as governmental use. See Volume IV, Page 568, line 4. The larger figure (5,184) for the clinic's area stated in Petitioner's Exhibit 9 is utilized for the volume of the clinic instead of Paris' figure of 4,200 square feet.) The total area of governmental uses is 71,336 square feet and includes the Department of Labor (5,000), HRS (18,000), Volusia County Environmental Health (22,277), and Volusia County Health Department (26,059). The total area of commercial uses is 49,016 square feet including Belks (41,490) and Dollar General (7,526). There was a total of 31,624 square feet vacant which Paris planned to lease for government offices. Under city code, the net square area was divided by a factor to arrive at the required parking for each type of use. The factor for the various uses are as follows: Governmental-200 square feet; Commercial-250 square feet; and Medical-100 square feet. The theater would require one space for every two seats and 5 for staff. See Petitioner's Exhibit 9. Utilizing the areas given above and the code's parking factors given above, the governmental offices less HRS would require 267 parking spaces. HRS would require 140 parking spaces. The clinic/dialysis center would require 52 parking spaces. The commercial uses would require 196 parking spaces, and the 232 seat theater would require 166 parking places. It is inferred that the vacant space was to be rented to governmental activities pursuant to the landlord's plan, and would require 188 parking spaces. A total of approximately 1,010 parking spaces would be required for the entire facility computed on gross areas assuming no future changes in the existing leaseholds and the lease of all the vacant space for government offices. The city code utilizes net area to compute parking excluding rest rooms, halls, etc. However, the estimation using gross figures results in a maximum estimate. Paris certified that the parking spaces were controlled by the bidder, that the parking spaces were on site and in the area indicated on the site plan submitted with the bid, and that 980 parking spaces could be accommodated. Paris' site plan also indicated the area in which the 140 parking spaces for HRS would be located. Other tenant parking was not indicated on the site plan; however, none of the other tenants had assigned parking. Paris calculated that a total of 840 spaces were required using the known data for current leases, 140 spaces for HRS, and a factor of one parking space for every 200 square feet of remaining vacant space. The building official opined that the completely leased facility would require between 750 and 1050 parking spaces, and that there was enough space on site to accommodate the required parking. Other competent evidence was received that between 880 and 1,077 parking spaces meeting code requirements could be placed on the site. Estimates by qualified, knowledgeable people varied based upon assumptions about occupancy and use, whether the lot could be "grandfathered in" and how the parking lot was laid out. There were enough spaces to provide parking for the HRS lease and all of the existing tenants at the time of submission of the bid proposal. However, under the existing code provisions, 140 parking spaces could not be accommodated in the rectangle indicated on Paris' site plan. This is not considered to be a material deviation from specifications because Paris had agreed to provide 140 spaces, the final arrangement and placement of the parking for HRS was subject to further negotiation, and the entire parking lot was subject to being relined. If spaces meeting code requirements would not have fit in the rectangle, Paris would have been required to adjust the size of the rectangle or design of the parking until they did fit. This was relatively easy because the other tenants did not have assigned parking. The RFP provided that the successful bidder would have time to remodel the property and to bring it into compliance with existing codes. This would include the parking facilities as well as the building. The HRS staff made a site visit, and were familiar with the property. They concluded that there was sufficient parking, and that Paris had made a valid, supportable offer. Their conclusion was reasonable given the opinion of the local building official and their personal knowledge of the property. The RFP calls for a performance bond, and permits HRS to cancel the contract if the successful bidder cannot perform under the terms of the bid. Minor deficiencies in the proposals of Procacci and Paris, which are not at issue in this case, were waived. The RFP contained no "fatal" deficiency provisions. The ITB stated that HRS reserved the right to waive minor informalities or technicalities, and seek clarification of bids received.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Petitioner's Petition be dismissed. DONE and ENTERED this 7th day of July, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 7th day of July, 1995. APPENDIX All of the parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1. Paragraph 2 Irrelevant. Paragraph 3 Paragraph 5,6. Paragraph 4 Argument and conclusions. Paragraph 5 Paragraph 7. Paragraph 6 First sentence is contrary to best evidence. Second sentence subsumed in other findings. Third sentence is contrary to best evidence. Paragraph 7,8 Subsumed in Paragraph 8. Paragraph 9 Irrelevant. Paragraph 10 Subsumed in Paragraph 6, and Conclusions of Law. Paragraph 11 Subsumed in Paragraph 8. Paragraph 12 No confusion exists. The terms of the RFP are clear. Paragraph 13 Rejected. There is no requirement to indicate on the site plan "existing" parking, unless it is assigned to an existing tenant. There was no assigned parking for existing tenants. Paragraph 14 Rejected. Paris' letter is based upon assumptions regarding future occupancy and uses; however, the site plan is not based upon those assumptions. Paragraph 15 Irrelevant. Paragraph 16 See comments to Paragraph 14. Paragraph 17 It was confusion for Paris to include parking spaces in areas marked "Future out parcels" on his site plan; however, this was clarified by HRS in its discussions with Paris, which indicated that there were no planned uses for those areas. Paragraph 18 The figure of 937 spaces is not mentioned on either of the two pages referenced. See discussion in Paragraph 19, Findings of Fact. Paragraph 19 Paris did not certify 980 "existing" spaces. He certified that the parking lot could accommodate 980 parking spaces. Paragraph 20 Contrary to facts. The 813 figure was not "identified" by HRS. Further, it is unclear from the reference to what the figure referred. Paragraph 21 Subsumed in Paragraph 9 et seq. Paragraph 22 See discussion of Paragraph 17, above. Paragraph 23 Subsumed in Paragraph 9 et seq., and Paragraph 13-18. Paragraph 24 Subsumed in Paragraph 19. Paragraph 25 Rejected as argument. Use of gross figures increases the number of required spaces; therefore, is not misleading in making estimates of future needs. Paragraph 26 Rejected as argument, and contrary to facts which indicates that HRS did conduct site visits, was familiar with the facilities, and checked challenged information with city building officials. Paragraph 27-29 Irrelevant, and subsumed in Paragraph 8. Respondent's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2,3,4 Subsumed in Paragraph 8. Paragraph 5 Subsumed in Paragraph 4. Paragraph 6 Subsumed in Paragraph 8. Paragraph 7 Irrelevant. Paragraph 8 Subsumed in Paragraphs 8,13,19. Paragraph 9 Subsumed in Paragraphs 4,5. Paragraph 10 Subsumed in Paragraph 7. Paragraphs 11,12 Subsumed in Paragraphs 5,19. Paragraphs 13,14 Subsumed in Paragraph 13 et seq. Paragraphs 15,16 Subsumed in Paragraph 19. Paragraph 17 Subsumed in Paragraph 13 et seq. Paragraphs 18-21 Irrelevant. Paragraphs 22-24 Subsumed in Paragraphs 8,23. Paragraph 25 Subsumed 22,24. Paragraphs 26-28 Subsumed in Paragraph 6. Paragraph 29 Subsumed in Paragraph 2. Paragraphs 30,31 Subsumed in Paragraphs 8,19. Paragraph 32-34 Subsumed in Paragraph 13 et seq. Paragraph 34 Subsumed in Paragraph 19. Paragraph 35 Irrelevant. Paragraph 36,37 Subsumed in Paragraph 19. Paragraph 38 Subsumed in Paragraph 15. Paragraph 39 Subsumed in Paragraph 11. Paragraphs 40-42 Subsumed in Paragraph 13 et seq. Paragraphs 43,44 Subsumed in Paragraph 17. Paragraphs 45,46 Subsumed in Paragraphs 23-24. Paragraph 47 Paragraph 18. Paragraphs 48,49 Subsumed in Paragraph 19. Paragraphs 50,51 Under the terms of the RFP, Paris had the opportunity to bring the facilities into code compliance. Failure to do so was a basis for terminating the contract. See Paragraph 20. Paragraph 52 Subsumed in Paragraph 19. Paragraphs 53-60 Subsumed in Paragraphs 10-12. Paragraph 61 Paragraph 19. Paragraph 62 Paragraph 8. Paragraphs 63,64 Conclusions of Law. Intervenor's Recommended Order Findings Paragraphs 1-4 Paragraphs 1-4 Paragraph 5 Paragraph 2 6,7 Not necessary to determination of issues. Paragraphs 8i-vii Subsumed in Paragraphs 5,6,8,10,19,21. Paragraph 9 Paragraph 13. Paragraphs 10i-viii, 11i-iv,12i-vi Paragraphs 13-17,21 Paragraph 13 Paragraph 8. Paragraphs 13i-ii Ir-relevant. Paragraph 13iii Paragraph 8. Paragraphs 13iv,v Irrelevant. Paragraphs 15-15iii Paragraphs 8,23. Paragraphs 16i-ii,17 Paragraph 8. Paragraph 18 Paragraph 9. Paragraphs 19,20 Paragraphs 10-12. Paragraphs 21i-v Paragraph 19. Paragraphs 22i-vii Conclusions of Law. Paragraphs 23i-iv Paragraph 19. Paragraph 24 Irrelevant. Paragraph 25 Conclusions of Law. Paragraph 26i-viii Paragraph 19. COPIES FURNISHED: Robert A. Sweetapple, Esquire Sweetapple, Broeker, and Varkas 465 East Palmetto Park Road Boca Raton, FL 33432 Ellen Phillips, Esquire HRS District 12 Legal Office 210 North Palmetto Avenue, Suite 412 Daytona Beach, FL 32114 Robert W. Morrison, Esquire Wells, Allen, Lang and Morrison 340 North Orange Avenue Orlando, FL 32801 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700

Florida Laws (7) 120.569120.57120.59520.19255.2557.04157.105
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IN RE: DADE COUNTY RESOURCES RECOVERY FACILITY PROJECT (PA 77-08B) vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 92-004672EPP (1992)
Division of Administrative Hearings, Florida Filed:Miami, Florida Jul. 30, 1992 Number: 92-004672EPP Latest Update: Jul. 18, 1995

The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.

Findings Of Fact NOTICE In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code. LAND USE AND ZONING CONPLIANCE The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with: Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan; Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992. APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5). Proposed finding of fact 1 is unnecessary. COPIES FURNISHED: Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash & Block 215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859 Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash & Block 100 Southeast 2nd Street Suite 3600 Miami, Florida 33131-2130 Representing the Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Gail Fels Assistant County Attorney Metro Dade Center, Suite 2800 111 Northwest First Street Miami, Florida 33128 Representing Dade County Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA William H. Roberts Assistant General Counsel Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458 Representing DOT Toni M. Leidy Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Representing SFWMD Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Carolyn Dekle, Executive Director Sam Goren, Attorney at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Representing South Florida Regional Planning Council David M. DeMaio Attorney at Law One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation of Homeowner Associations Honorable Lawton Chiles Honorable Jim Smith Governor Secretary of State State of Florida State of Florida The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida 32399-0250 Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399

Florida Laws (2) 120.57403.508
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GATEWAY SOUTHEAST PROPERTIES, INC. vs TOWN OF MEDLEY; DEPARTMENT OF COMMUNITY AFFAIRS; AND WASTE MANAGEMENT INC., OF FLORIDA, 06-000918GM (2006)
Division of Administrative Hearings, Florida Filed:Miami, Florida Mar. 14, 2006 Number: 06-000918GM Latest Update: Sep. 04, 2007

The Issue The issue in this case is whether the land development regulation adopted by Respondent, Town of Medley (Town), by Ordinance No. C-306 on September 6, 2005, is consistent with the Town's Comprehensive Plan (Plan).

Findings Of Fact Based upon the record presented by the parties, the following undisputed findings of fact are determined: The Town appears on a map to be located in the northern part of Dade County, south of U.S. Highway 27 and east of the Florida Turnpike, and just south of the City of Hialeah Gardens and southwest of the City of Hialeah. Besides a Plan originally adopted in December 1988, and amended from time to time, the Town also has a Code containing its land development regulations. Waste Management owns and operates a landfill in the Town known as the Medley Landfill & Recycling Center located at 9350 Northwest 89th Avenue.4 Because the landfill has been in operation since 1952, or long before the Plan was adopted, the landfill is considered a nonconforming use under Section 62-61 of the Town's Code. On September 6, 2005, the Town adopted Ordinance C- 306 which amended Section 62-61 of the Code to create a new procedure for allowing the expansion of qualifying facilities operating as nonconforming uses. (Except for Section 62-61, which is found in the Town's land development regulations, there are no provisions in the Plan itself relating to nonconforming uses.) Prior to the adoption of the Ordinance, Subsection 62-61(b) provided the following limitation on the expansion of nonconforming uses: (b) The lawful use of land existing at the time of the passage of this chapter, although such use does not conform to the provisions of this chapter may be continued; provided, however, that no such nonconforming use shall be enlarged or increased, nor shall any nonconforming use be extended to occupy a greater area of land than that occupied by such use at the time of the passage of this chapter. Ordinance C-306 amended Subsection 62-61(b) as follows to allow for an exception to the rule against enlargement or expansion of nonconforming uses: (b) The lawful use of land existing at the time of the passage of this chapter, although such use does not conform to the provisions of this chapter, may be continued; provided, however, that no such nonconforming use shall be enlarged or increased except as provided in subsection (d) hereof, nor shall any nonconforming use be extended to occupy a greater area of land than that occupied by such use at the time of the passage of this chapter. To implement the exception against enlargement or expansion of nonconforming uses, the Ordinance further amended Section 62-61 by adding a new Subsection (d) to read as follows: (d) Any nonconforming use which serves as a Public Facility may be enlarged up to fifteen percent of the current building and/or land area of such use after formal approval by the Town Council via resolution according to the Municipal Code of Medley, Florida. Before approving such enlargement or increase the Town Council shall conduct at least two public hearings. The basis for calculation of such enlargement or increase shall exclude buildings and/or land areas not currently operating as a Public facility, though contiguous thereto. The new provision allows any nonconforming use which serves as a Public Facility to be enlarged or increased up to fifteen percent of its current building or land areas after formal approval by the Town Council by resolution. Because the Code did not define the term "Public Facilities," Ordinance C-306 amended Section 62-1 (the definitions portion of the Code) by adding a new Subsection (a), which reads as follows: "Public facilities" means major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, and health systems and facilities. As is evident from a reading of the definition, the term "public facilities" is not limited to solid waste facilities, but it also includes seven other types of public facilities. Gateway is the owner of real property commonly known as Medley Commerce Center, which is located in the Town immediately adjacent to and north of Waste Management's landfill. On October 6, 2005, Gateway filed a Petition with the Town alleging that the Ordinance was not consistent with the Plan in various respects. The Town did not respond to Gateway's Petition within thirty days after receipt of the Petition. Because no response was made by the Town, on November 7, 2005, Gateway filed a Petition with the Department requesting that the Department declare the Ordinance inconsistent with the Town's Comprehensive Plan (Plan). See § 163.3213(3), Fla. Stat. The Petition referred to a Complaint filed in a circuit court case, Town of Medley v. Waste Management Inc. of Florida, Case No. 03-25832 CA 13, as stating the reasons for inconsistency. Although a copy of the Complaint was not attached to its Petition, Gateway later supplied the Department with a copy. After conducting an informal hearing on December 7, 2005, on February 21, 2006, the Department issued its Determination. In general terms, the Determination concluded that the concerns in Gateway's Petition should more appropriately be raised in a circuit court action under a different provision in Chapter 163, Florida Statutes, through a challenge to any development order or approval that authorizes the expansion of a nonconforming public facility. See Determination, paragraph 17. On March 15, 2006, Gateway filed its Request with DOAH contending generally that the Ordinance was inconsistent with the Plan and that the Department had used the wrong legal standard in determining that the Ordinance was consistent with the Plan. The City, which appears on a map to lie directly south of the Town, shares a border with the Town in the area of Waste Management's landfill property. On February 9, 2006, the City filed a Petition with the Town seeking to have the Town declare that the Ordinance was inconsistent with its Plan. The Petition raised the same issues as did Gateway. On March 2, 2006, the Town provided a response to the Petition by asserting that the claim was barred by collateral estoppel due to the Department's Determination issued on February 21, 2006. The City then waived its right to have the Department conduct informal proceedings under Section 163.3213(4), Florida Statutes, and filed a Motion to Intervene and Incorporated Petition with DOAH on April 27, 2006. Although the City sought to intervene in Case No. 06-0918GM, the filing was treated as a new filing under Section 163.3213(5)(a), Florida Statutes, was assigned Case No. 06- 1548GM, and was consolidated with Gateway's case. Except for one additional consistency claim, discussed below, the filing raises the same issues as did Gateway. The purpose of Ordinance C-306, as expressed in Section 2 thereof, is as follows: PURPOSE: The limited increase or enlargement of nonconforming uses allowed by this ordinance is intended to further the goals, objectives and policies of the Town's Comprehensive Plan found in the Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Ground Water Aquifer Recharge Element as well as the Intergovernmental Coordination Element. The Plan's Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Ground Water Aquifer Recharge Element (Element) in the Future Land Use Element (FLUE) identifies as its primary (and only) goal the "[p]rovision of needed public facilities in a manner that protects public and private investments in existing facilities and promotes compact urban growth." (Vol. IV, Record, page 603). Objective 1 of the same Element provides that an aim of the Plan is the "[p]rovision of sanitary sewer, solid waste, drainage and potable water facilities and services to meet existing and projected demands identified in this Plan." Id. Policy 1.2 also indicates that the Town is to "[i]mplement procedures to ensure that adequate facility capacity is available or will be available at the time a new development permit is issued." Id.

Florida Laws (5) 120.57120.68163.3177163.3194163.3213
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MARY K. WATERS vs MIAMI-DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA; AND KROME AGRONOMICS, LLC, 20-002857GM (2020)
Division of Administrative Hearings, Florida Filed:Miami, Florida Jun. 19, 2020 Number: 20-002857GM Latest Update: Jan. 09, 2025

The Issue Whether Miami-Dade County’s (“the County’s”) comprehensive plan amendment, adopted by Ordinance No. 20-47 on May 20, 2020, is “in compliance,” as that term is defined in section 163.3184, Florida Statutes.1

Findings Of Fact The Parties Petitioner resides, and owns property, in the County. Petitioner made oral or written comments and objections to the County regarding the Plan Amendment during the time period between the County’s transmittal and adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty and authority to adopt and amend its Comprehensive Plan. See § 163.3167(1), Fla. Stat. Krome is a limited liability company, existing under the laws of the State of Florida, with its principal place of business in the State of Florida. Krome owns the property subject to the Plan Amendment, as well as other property within the area affected by the Plan Amendment, and was the applicant for the Plan Amendment. The Subject Property and Surrounding Uses The Subject Property is 5.97 gross acres (approximately 4.6 net acres) of vacant land located outside of the Urban Development Boundary on the southwest corner of SW 177 Avenue (Krome Avenue) and SW 136 Street. It is the northeast corner of a larger 48.33-acre parcel owned by Krome (the “Parent Tract”). Adjacent to the north of the Parent Tract, across SW 136 Street, is a solar farm operated by Florida Power and Light Company (FPL). To the east, across Krome Avenue, and to the south, including the remaining portion of the Parent Tract, are agricultural lands used for row crops. West and south of the Parent Tract (including the Subject Property), the land is developed predominantly with five-acre rural estates, interspersed with small residential farms and agricultural sites ranging between 10 and 30 acres in size. The Property is located within an approximately 11-mile stretch of Krome Avenue where there are presently no gas service stations. The nearest gas service station to the south of the Property is located approximately three miles away. The nearest gas service station to the north of the Property is located approximately eight miles away. The Plan Amendment The Plan Amendment changes the Future Land Use (“FLU”) designation of the Subject Property from the “Agricultural” to the “Business and Office” land use category. The Business and Office category allows for development of a wide range of sales and services uses, including retail, wholesale, personal and professional services, call centers, commercial and professional offices, hotels, motels, hospitals, medical buildings, nursing homes, entertainment and cultural facilities, amusements, and commercial recreation establishments. The category also allows light industrial development, telecommunication facilities, and residential uses (stand alone or mixed with commercial, light industrial, office, and hotels). Krome sought the Plan Amendment for the ultimate purpose of operating a gas service station and other food and retail uses compatible with, and supportive of, the surrounding agricultural and residential community. In recognition that the “Business and Office” land use designation permits a wide variety of uses, Krome proffered to restrict the permitted uses on the Property by submitting a Declaration of Restrictions to be recorded as a covenant running with the land. County Consideration of Plan Amendment In October 2019, County planning staff issued its Initial Report and Recommendations, suggesting denial of the proposed Plan Amendment. The County’s Community Councils are tasked with providing recommendations on proposed amendments to the Comprehensive Plan. The West Kendall Community Council conducted a public hearing on the proposed Plan Amendment on December 16, 2019, at which members of the public commented on the proposal. A representative of Krome made a presentation at the public hearing and submitted presentation exhibits that included: (1) a proposed Declaration of Restrictions; (2) a County memorandum relating to a separate application to allow the establishment of a gas station at SW 177 Avenue and SW 200 Street in Miami-Dade County; (3) a letter from the Dade County Farm Bureau stating that it had no objection to the Application; and (4) a Petition of Support listing 105 members of the community that elected to express support and recommend approval of the proposal. At the conclusion of the December 16, 2019 hearing, the West Kendall Community Council voted to recommend that the proposed Plan Amendment be adopted with acceptance of the proffered Declaration of Restrictions. After previously deferring the matter at a hearing on October 29, 2019, the Miami-Dade County Board of County Commissioners (the “BCC”) voted on December 17, 2019, to adopt the Plan Amendment on first reading. The County’s Planning Advisory Board (“PAB”) serves as the Local Planning Agency to review any matters referred to it by the BCC, pursuant to section 2-108 of the Miami-Dade County Code. On January 8, 2020, the PAB, acting as the Local Planning Agency, conducted a public hearing to address the proposal. Near the conclusion of the hearing, the chairman of the PAB proposed an amendment to the proffered Declaration of Restrictions such that the maximum gross square feet of enclosed, under-roof construction on the Property, excluding fueling islands, would be reduced from 10,000 square feet to 6,000 square feet. Krome’s representative agreed to the proposed amendment. The PAB then voted to recommend that the BCC adopt the Plan Amendment with acceptance of the revised Declaration of Restrictions. After previously deferring second reading of the ordinance on January 23, 2020, the BCC voted nine-to-three to adopt Ordinance No. 20-47 on second reading at a public hearing on May 20, 2020. As part of its adoption of the Plan Amendment, the BCC accepted Krome’s proffered Declaration of Restrictions containing the provisions outlined below. The adopted Declaration of Restrictions states that it is a covenant running with the land for a period of 30 years, and thereafter automatically renews for 10-year periods. The Declaration of Restrictions expressly allows for “[a]ll uses permitted under Article XXXIII, Section 33-279, Uses Permitted, AU, Agricultural District, of the Miami-Dade County Code” along with an “Automobile gas station with mini mart/convenience store” with a maximum of 15 vehicle fueling positions. The Declaration of Restrictions further provides that “[m]echanical repairs, oil or transmission changes, tire repair or installation, maintenance, automobile or truck washing” are prohibited uses, and it limits the maximum gross square feet of enclosed, under-roof construction to 6,000 square feet. Petitioner’s Challenges In the Amended Petition, Petitioner alleges the Plan Amendment is not “in compliance,” specifically contending that it: (1) creates internal inconsistencies with certain existing Comprehensive Plan policies, in contravention of section 163.3177(2); (2) fails to discourage the proliferation of urban sprawl, as required by section 163.3177(6)(a)9.; and (3) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f). Internal Consistency The Comprehensive Plan gives the County Commission flexibility to appropriately balance the community’s needs with land use, environmental, and other Comprehensive Plan policies. It is inherent in the comprehensive planning process that the Comprehensive Plan contains potentially competing goals, objectives, and policies, and that addressing them entails a balancing act rather than an all-or-nothing choice. The Comprehensive Plan expressly recognizes this balancing act in its Statement of Legislative Intent: The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. * * * Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. Accordingly, the Comprehensive Plan must be read as a whole, and a plan amendment should not be measured against only certain policies in isolation. Krome’s expert, Kenneth Metcalf, opined that the Plan Amendment affirmatively furthers several Comprehensive Plan goals, objectives, and policies, including Land Use Policies (“LU”) 1G, 1O, and 8E; Conservation Policy (“CON”) 6E; Community Health and Design Policies (“CHMP”) 4A and 4C; Coastal Management Policies (“CM”) 8A and 8F; and Economic Policy (“ECO”) 7A. Petitioner contends that the Plan Amendment is inconsistent with some of those same policies, as well as other policies. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1G, which states: Business developments shall preferably be placed in clusters or nodes in the vicinity of major roadway intersections, and not in continuous strips or as isolated spots, with the exception of small neighborhood nodes. Business developments shall be designed to relate to adjacent development, and large uses should be planned and designed to serve as an anchor for adjoining smaller businesses or the adjacent business district. Granting of commercial or other non-residential zoning by the County is not necessarily warranted on a given property by virtue of nearby or adjacent roadway construction or expansion, or by its location at the intersection of two roadways. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with the allowance in Policy LU-1G for small neighborhood nodes based on its relationship to the adjacent rural residential and agricultural community, especially given the evidence that such adjacent community lacks existing options for gas and convenience goods. He further explained that use of the word “preferably” in Policy LU-1G indicated a preference, not a bright-line rule or requirement, and that the Comprehensive Plan does not contain a definition of “small neighborhood nodes” or any interim step for designating such nodes. Further, the County’s expert, Alex David, opined that the Plan Amendment is not inconsistent with Policy LU-1G. He first noted that locating business developments in clusters or nodes is preferable, but not compulsory. In addition, he explained that the policy allows for small neighborhood nodes, and that this Plan Amendment fits the concept of a small neighborhood node in terms of its location, scale, and function: Location: The Plan amendment is limited to a portion of a quadrant of the intersection of two roads adjacent to a rural community, so it will not be linear development along the Krome Avenue corridor; Scale: The Plan amendment is considered “small-scale” under the Florida Statutes because it involves less than 10 acres in land area. In addition, the Declaration of Restrictions accepted by the County Commission restricts the extent of land uses (other than those permitted under the AU Zoning District) to a convenience retail limited to a maximum of 6,000 square feet and a gas station with 15 fueling positions; and Function: Neither the Comprehensive Plan nor the County Code define the term “convenience store.” However, many other communities define this use as a small retail establishment intended to serve the daily or frequent needs of the surrounding neighborhood population by offering for sale prepackaged food products, household items, over-the-counter medicine, newspapers and magazines, freshly prepared foods, and even access to an ATM. In rural neighborhoods such as those surrounding the location of the Plan Amendment, a convenience store associated with a gas station is often the only place nearby to buy such items. These stores often also serve as a community gathering spot. Based on these characteristics, Mr. David opined that the Plan Amendment would create a small neighborhood node with a gas and convenience use for the surrounding rural farm community, similar to the nodes to the south along Krome Avenue that serve the surrounding communities there. Mr. David also contradicted Petitioner’s contention that the Comprehensive Plan contains a process for designating nodes. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1O, which states: “Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe in the Agriculture Areas outside the Urban Development Boundary, through its Comprehensive Plan amendment process, regulatory and capital improvements programs and intergovernmental coordination activities.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with LU-1O because the development contemplated by the Plan Amendment is designed to serve the adjacent existing rural neighborhoods to the southwest that are in need of gas and convenience goods. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-1O. He explained that this policy aims to ensure that development does not happen in isolation and occurs, instead, where other development already exists. Because the Plan Amendment site is proximate to a contiguous, and nearly continuous grid of, existing development consisting of rural estate residential and small-scale residential farms, the Plan Amendment does not contravene this policy or its purpose. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1P, which states: While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism and agritourism related to the area's agricultural and natural resource base including Everglades and Biscayne National Parks. Petitioner offered no evidence or expert testimony to support the contention that the Plan Amendment is inconsistent with Policy LU-1P. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-1P because that policy allows for alternative land uses that are compatible with agricultural uses, such as Krome’s plans for the store to support local agricultural uses and agri-tourism by selling fresh fruit from local groves and diesel for smaller scale agricultural farmers, as provided in the Declaration of Restrictions. Mr. David opined that the Plan Amendment is not inconsistent with that policy. He explained that the Plan Amendment pertains only to a very small portion (less than six gross acres) of a larger agricultural site, which will continue to be actively used for agriculture, and there is no evidence that the Plan Amendment will impair the viability of the agricultural economy in the County. As Mr. David explained, the County previously determined that the amount of land that is needed to maintain a “viable” agricultural industry is approximately 50,000 acres, and according to the County, the County has about 55,206 acres available. The 5.97 gross acres (approximately 4.6 net acres) of land that the Plan Amendment directly impacts is miniscule in comparison. Mr. David also explained how the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses, as well as promoting economic development in the County’s agricultural area. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1S, which states: The Miami-Dade County Strategic Plan shall be consistent with the Comprehensive Development Master Plan (CDMP). The Miami-Dade County Strategic Plan includes Countywide community goals, strategies and key outcomes for Miami-Dade County government. Key outcomes of the Strategic Plan that are relevant to the Land Use element of the CDMP include increased urban infill development and urban center development, protection of viable agriculture and environmentally-sensitive land, reduced flooding, improved infrastructure and redevelopment to attract businesses, availability of high quality green space throughout the County, and development of mixed-use, multi-modal, well designed, and sustainable communities. Petitioner offered no expert testimony to support this contention. Petitioner’s reliance on LU-1S is misplaced because that provision requires the Miami-Dade County Strategic Plan to be consistent with the Comprehensive Plan, not the other way around. As such, this policy is irrelevant to the Plan Amendment, as both Mr. Metcalf and Mr. David testified. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-2B, which states: Priority in the provision of services and facilities and the allocation of financial resources for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Infill Area and Transportation Concurrency Exception Areas. Second priority shall be given to serve the area between the Urban Infill Area and the Urban Development Boundary. And third priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non- urban areas. Areas designated Environmental Protection shall be particularly avoided. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-2B because that policy provides a specific exception for improvements that will serve “localized needs of these non- urban areas,” such as the proposed gas station and convenience store. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-2B because it does not request, require, or necessitate the expansion of the Urban Development Boundary (“UDB”) or the Urban Expansion Area (“UEA”), nor does it involve or propose the extension of urban services or facilities outside the 2020 UDB or into the Agriculture and Open Land areas. Mr. David explained that gas stations and convenience stores are not “services or facilities,” as those terms are used in the Comprehensive Plan, nor would the gas station or convenience store allowed by the Plan Amendment be an “urban” use. Therefore, urban services and facilities that support or encourage urban development in Agriculture or Open Land areas will continue to be avoided. Mr. David further explained, as County planning staff recognized, the Plan Amendment will not impact key infrastructure and Levels of Service (“LOS”) that exist within the UDB (including, but not limited to, water and sewer, transportation, solid waste, etc.). Although County staff found that, under the Plan Amendment, fire and rescue services for the Property would not meet national industry standards, Mr. David refuted that concern, explaining that the Comprehensive Plan does not require compliance with national industry standards for fire and rescue, nor does the Plan Amendment violate a County LOS standard for fire and rescue. Petitioner contends that the Plan Amendment is inconsistent with Objective LU-7, which states: Miami-Dade County shall require all new development and redevelopment in existing and planned transit corridors and urban centers to be planned and designed to promote transit-oriented development (TOD), and transit use, which mixes residential, retail, office, open space and public uses in a safe, pedestrian and bicycle friendly environment that promotes mobility for people of all ages and abilities through the use of rapid transit services. The Plan Amendment is not located in an existing or planned transit corridor or urban center. Objective LU-7 is not applicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8C, which states: “Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to protect and promote agriculture as a viable economic use of land in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8C. He explained that the policy contained a general directive for the County to promote and protect agriculture, but did not prohibit small scale plan amendments that respond to the existing needs of the surrounding agricultural and rural communities, such as the Plan Amendment. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8C. Again, he explained that the Plan Amendment pertains only to a small portion of the Parent Tract, which will continue to be actively used for agriculture; that the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses; and that those uses will promote economic development in the County’s agricultural area. He also explained that removing the Property from agricultural production would not reduce the number of acres in agricultural production below the threshold needed to sustain agriculture as a viable economic activity in Miami-Dade County. Mr. David further explained that there is no provision in the Comprehensive Plan categorically prohibiting the removal of agricultural land from agricultural production. Petitioner argued that the Plan Amendment would further degrade existing agricultural uses in the area because it could tempt ATV riders to trespass and ride their ATVs over nearby agricultural lands. Mr. David found that speculative concern immaterial to the analysis required by the Comprehensive Plan. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8E, which states: Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated for consistency with the Goals, Objectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at or above adopted LOS Standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; Enhance or degrade environmental or historical resources, features or systems of County significance; and If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective LU- 7, herein. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8E. As an initial matter, Mr. Metcalf explained that this Policy only requires an evaluation of “the extent to which” the subparts are satisfied, and does not set a threshold or a specific methodology. Regarding subpart (i), Mr. Metcalf explained the Plan Amendment addressed an existing and future need for a gas station, convenience retail products, fresh food, and supporting products for the agricultural industry within the general area, which currently lacks these offerings. In addition, he opined that the gas station would respond to a critical need to reduce fuel shortages during hurricane evacuations. As to subparts (ii-iv), Mr. Metcalf opined that the Plan Amendment would not impede provision of services at LOS standards; would enhance hurricane evacuations; would be compatible with nearby uses because the Parent Tract would continue to be used for agriculture, which would serve as a buffer between the Subject Property and adjacent uses; and that the Subject Property does not contain any environmental or historical resources, features, or systems of County significance. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8E. He explained, first, that Krome submitted with its application a Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf, establishing that the Plan Amendment will help satisfy an existing deficiency in the Plan map by facilitating a convenience retail opportunity to serve the needs of the local population, who currently must drive on Krome Avenue at least three miles one way south of this location to SW 184th Street, or more than eight miles north, and then east on Kendall Drive (SW 88th Street), to reach the nearest equivalent services. In addition, there was significant support for the application by area residents, as evidenced by the petition submitted by Krome and the public testimony in favor of the Plan Amendment. Second, he explained that the Plan Amendment will not impede the provision of services at or above adopted LOS standards, as County staff noted in its report. On the contrary, with regards to traffic, the Plan Amendment may facilitate a reduction in trip generation and vehicle-miles traveled (“VMT”) on Krome Avenue from the existing residential community to the west and south, by providing a nearby convenience that may be reached without driving several miles north or south on Krome Avenue. Third, he opined that the Plan Amendment is compatible with abutting and nearby land uses and would protect the character of established neighborhoods—the large-scale solar power facility to the north, and the remainder of the 50-acre parcel that will remain in agricultural use to the west and south—will provide an appropriate buffer for the surrounding rural estate residential uses. Krome Avenue at this location is a 4-lane divided arterial with a 40-foot median, which also provides a significant buffer between the Plan Amendment site and the uses across Krome Avenue. In its evaluation, County staff recognizes that the “Business and Office” land use designation and the proposed development could be “generally compatible” with the existing agricultural uses and FPL’s Solar Energy Center. Mr. David opined that the assertion that the land use re-designation “would set a precedent for the conversion of additional agricultural land to commercial uses” is speculative and not only unproven, but refuted by the existing commercial development along the Krome Avenue corridor. The existing isolated uses along Krome Avenue, some of which are the same or similar uses that would be allowed by the Plan Amendment, are long-standing and have not led to urban development or infill in the area. Mr. David also testified that there are “very stringent policies” that restrict further development from occurring along Krome Avenue in this area, including Policies LU-3N and LU-3O. Fourth, Mr. David explained that the Plan Amendment will not degrade historical or archaeological resources, features, or systems of County significance, which is further confirmed by County staff’s own analysis. Regarding impacts to environmental resources, before any development proceeds on the Subject Property, the applicant must apply to all relevant state, regional, and local agencies for the applicable and necessary permits and variances, and if the applicant is unable to obtain such approvals due to environmental concerns, the project will not be permitted to proceed. In other words, while there is no evidence of adverse environmental impacts at the plan amendment stage, the applicant will have to satisfy all environmental requirements in subsequent stages of the development process to proceed with the project. Lastly, Mr. David explained that the Plan Amendment site is not located in an Urban Center or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period headways of 20 or fewer minutes; thus, the fifth and final consideration of Policy LU-8E is inapplicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8G, which provides criteria for plan amendments that add land to the UDB. Because the Plan Amendment does not add land to the UDB, Policy LU-8G is irrelevant to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy CHD-4A, which states: “Promote increased production and expand the availability of agricultural goods and other food products produced in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy CHD-4A because the proposed store would support the local sale and consumption of goods from the community. Similarly, Mr. David opined that the Plan Amendment is not inconsistent with Policy CHD-4A. He explained that there is no metric associated with this aspirational policy, and noted that the approval of the Plan Amendment pertains only to a small portion of a larger agricultural site, the balance of which will continue to be protected and promoted for agricultural use. Moreover, he explained that the uses allowed by the Plan Amendment through the Declaration of Restrictions are limited to those permitted in the AU Zoning District, plus a fueling and convenience retail service use, which could support the sale and consumption of local agricultural goods. Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6D, which states: “Areas in Miami-Dade County having soils with good potential for agricultural use without additional drainage of wetlands shall be protected from premature urban encroachment.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment is not inconsistent with the policy because it affects only a five-acre tract, and because the Plan Amendment was justified by the existing demand. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6D. He noted, first, that according to the County, the Plan Amendment site does not contain jurisdictional wetlands. Second, he explained the Plan Amendment will not result in premature urban encroachment–i.e., a poorly planned expansion of low-density development spread out over large amounts of land, putting long distances between homes, stores, and work, and requiring an inefficient extension of urban infrastructure and services. According to Mr. David, the adopted Plan Amendment is the opposite of these characteristics because: a) it pertains to a very small site, with a range of permitted uses that is specifically limited by the accepted Declaration of Restrictions; b) it will reduce the distance between residents’ homes and local-serving convenience services; and c) it does not involve the extension of urban infrastructure and services. In addition, Mr. David opined that the term “premature” does not apply to the Plan Amendment, as evidenced by the public support of area residents for the gas and convenience uses and the applicant’s expert analysis of area need. Furthermore, Mr. David established that a gas station with a convenience store is not an “urban” use, and, therefore, the Plan Amendment does not allow “urban encroachment.” Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6E, which states: “Miami-Dade County shall continue to pursue programs and mechanisms to support the local agriculture industry, and the preservation of land suitable for agriculture.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with Policy CON-6E because it affected less than five net acres, only 10 percent of the Parent Tract, and would provide convenience goods for the community and local farmworkers. He further explained, again, that the policy does not prohibit small-scale plan amendments that respond to a local need. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6E. He explained that the Plan Amendment does not prevent Miami-Dade County from continuing to pursue programs and mechanisms to support the local agriculture industry and the preservation of land suitable for agriculture. Moreover, the addition of the permitted uses on a small portion of an otherwise agricultural site, which will continue to be used for agricultural production, is not inconsistent with this policy. Urban Sprawl Petitioner alleges that the Plan Amendment fails to discourage the proliferation of urban sprawl, contrary to section 163.3177(6)(a)9, Florida Statutes. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment would not constitute scattered or discontinuous development because, inter alia, it would introduce uses designed to serve the existing nearby community. Mr. Metcalf opined that the Plan Amendment would allow for non-vehicular trips due to the proximity of the rural neighborhoods and would internalize vehicular trips without requiring access to Krome Avenue, consistent with strategies to discourage urban sprawl. Finally, Mr. Metcalf opined that at least six of the eight criteria provided in section 163.3177(6)(a)9.B. were satisfied by the Plan Amendment. Specifically, he opined that: The Plan Amendment will not have an adverse impact on natural resources or ecosystems; The Plan Amendment promotes the efficient and cost-effective provision or extension of public infrastructure and services because the subject property will not be served by public infrastructure and is already served by emergency services, and because it will reduce demand on roads from nearby neighborhoods, thereby reducing operational and maintenance costs; The Plan Amendment promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities by providing convenience goods and services within walking or biking distance to nearby residential neighborhoods and local farm workers; The Plan Amendment promotes the conservation of water and energy by reducing water demands as compared to the former use of the Property, and by reducing existing trip lengths otherwise required to access goods and services; The Plan Amendment indirectly supports the preservation of agricultural areas and activities by providing diesel fuel, selling locally grown produce and other agriculturally supportive products, and by maintaining the agricultural use on the remainder of the Parent Tract; The Plan Amendment creates an improved balance of land uses by providing convenience goods and gasoline/diesel fuel in response to the demands of the neighborhood residents and local farm workers; The Plan Amendment remediates the existing, single use, urban sprawl development pattern by providing a commercial use in a compact urban form at an intensity to allow residents and local farm workers to obtain goods, gasoline, and diesel fuel without leaving the neighborhood; and The Plan Amendment does not impact the criterion for open space, natural lands and public open space. Similarly, Mr. David opined that the Plan Amendment would not result in the proliferation of urban sprawl; he analyzed each of the statutory indicators of urban sprawl in section 163.3177(6)(a)9.A. and found that none are present, meaning that the Plan Amendment does not fail to discourage the proliferation of urban sprawl. In addition, he found that four of the statutory indicators of the Plan Amendment that would discourage the proliferation of urban sprawl, are present. He found that the remainder were not applicable. Specifically, Mr. David opined that the Plan Amendment would meet the following four indicators: Directs or locates economic growth and associated land development to geographic areas of the community in a manner that does not have an adverse impact on and protects natural resources and ecosystems. As Mr. David explained, agriculture is a human development activity. Therefore, the Parent Tract is not in a natural state, nor does it contain natural resources and ecosystems. According to County staff’s own report, the Subject Property does not feature native wetland communities, specimen trees, endangered species, or natural forest communities. There are no jurisdictional wetlands, no water courses, and no federally designated critical habitat on the Subject Property or adjacent properties. The Subject Property is not in a wellfield. Other environmental considerations, including water and stormwater management, and flood protection, are directed through the pertinent permitting agencies at the appropriate time to ensure that any future development minimizes adverse impacts on the general environment. Promotes the efficient and cost-effective provision or extension of public infrastructure and services. As Mr. David opined, the Plan Amendment does not involve or require the provision or extension of County-owned public infrastructure and services. This, therefore, meets the definition of the terms “efficient” and “cost- effective,” since the County will not have to invest time or funding in the extension of such infrastructure and services. The County staff’s own report finds, as a fact, that the amendment would not negatively impact existing infrastructure and service within the UDB. Moreover, the contention that fire and rescue services would not meet national industry standards is irrelevant because: (1) the Comprehensive Plan does not adopt the national industry standard as the LOS; and (2) the Plan Amendment would not negatively impact current estimated travel times for fire and rescue services. Further, as Mr. David testified with respect to the first set of urban sprawl indicators, the Plan Amendment would not disproportionately impact fire and rescue services. V. Preserves agricultural areas and activities, including silviculture, and dormant, unique, and prime farmlands and soils. As Mr. David explained, the Plan Amendment preserves agricultural areas and activities because the balance of the Parent Tract will continue to be preserved as crop land, and because the uses allowed in the proffered Declaration of Restrictions include agricultural uses and a fueling station that could include the sale of diesel, which is in demand for agricultural uses. VII. Creates a balance of land uses based upon demands of the residential population for the nonresidential needs of an area. As Mr. David opined, today the area does not have a balance of land uses, as it is entirely dominated by rural estate residential and agricultural uses. By introducing a gas and convenience use supportive of agriculture, the Plan Amendment will create a better balance of land uses in the area. Today, the local population does not have access to any type of convenience shopping in the vicinity of this location, because it is situated along an 11-mile gap between such uses on Krome Avenue. Contrary to the contention that the applicant failed to demonstrate the use is needed or required by residents, the applicant provided written evidence of support from over 100 neighbors about the need for the proposed nonresidential use and its benefit to their quality of life. Moreover, according to the public hearing record, many residents also attended the public hearings to express their support for the Plan Amendment. Further supporting the finding of need, the corporate representative of Krome testified in detail about the neighborhood’s need for a gas station and convenience store. Data and Analysis Finally, Petitioner alleges that the Plan Amendment “is not based upon the relevant and appropriate data and analysis provided by the County planning staff at the Department of Regulatory and Economic Resources, as required by section 163.3177(1)(f), Florida Statutes.” Petitioner also alleges that the Plan Amendment is based on “the convenience of access to fuel for private property owners in the area and not on relevant data and analysis.” Petitioner’s allegations, both in the Amended Petition and the Joint Pre- Hearing Stipulation, are conclusory and do not supply any discernible rationale for why she contends the Plan Amendment is not based on relevant and appropriate data and analysis. Petitioner offered no evidence or expert testimony to support these contentions. By contrast, Mr. Metcalf opined that the Plan Amendment is based on “relevant and appropriate data and analysis” supporting the Plan Amendment contained in the record. Namely, the following sources constitute such “relevant and appropriate data and analysis”: Mr. Metcalf’s Comprehensive Plan Consistency Evaluation, which contains 78 pages of comprehensive data and analysis supportive of his consistency findings; a petition of support for the Plan Amendment signed by over 100 members of the surrounding community; testimony from community members at various public hearings indicating a need for the Plan Amendment; and a letter from the Dade County Farm Bureau stating that the organization had no objection to the Plan Amendment Further, Mr. David also opined that the Plan Amendment is based on, and supported by, appropriate data and analysis. He explained that the video recordings and the legislative history of the adoption hearings related to the disposition of the Plan Amendment application clearly show that the County Commission duly considered the analysis provided by County staff before making a decision. Commissioners asked staff members thoughtful questions and discussed various findings of the staff report throughout the public hearings. Mr. David explained that County staff’s input is not the only criterion upon which elected officials may rely. Indeed, relevant data and analysis were also submitted by the applicant as part of the Plan Amendment application, including the Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf. The Consistency Evaluation study relies on professionally accepted data sources and Mr. Metcalf’s extensive expertise to provide a sound rationale for the requested Plan Amendment. The County Commission considered, and reacted in an appropriate way to, such relevant and appropriate data. The County Commission received and considered community input in the form of public testimony, much of which was in support of the Plan Amendment, as well as the applicant’s petition of support from members of the surrounding community expressing need for local gas and convenience uses. Finally, Mr. David’s expert report itself supplies further data and analysis supporting the Plan Amendment. Other Allegations Petitioner alleges that the Plan Amendment “depletes the Urban Development Boundary and Urban Expansion Areas.” The Comprehensive Plan includes the UDB to distinguish the area where urban development may occur from areas where it should not occur. The Comprehensive Plan defines the UEA as “the area where current projections indicate that further urban development beyond the 2020 UDB is likely to be warranted sometime between the year 2020 and 2030.” Petitioner fails to identify any inconsistency between the Plan Amendment and any UDB or UEA policies based on her assertion that depletion will occur. Moreover, there are no goals, objectives, or policies in the Comprehensive Plan that address the concept of “depleting” the UDB or UEAs. Petitioner also alleges that the County adopted the Plan Amendment “to benefit[] other private property owners and special interests.” Petitioner introduced no evidence to support this allegation, and the allegation is also irrelevant to whether the Plan Amendment is “in compliance.”

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 the Plan Amendment adopted by Miami-Dade County Ordinance No. 20-47, on May 20, 2020, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mary K. Waters Post Office Box 700045 Miami, Florida 33170 Christopher J. Wahl, Esquire Miami-Dade County Attorney's Office Suite 2810 111 Northwest 1st Street Miami, Florida 33128 Alannah Shubrick, Esquire Shubin & Bass, P.A. Third Floor 46 Southwest 1st Street Miami, Florida 33130 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2021. James Edwin Kirtley, Assistant County Attorney Miami-Dade County Attorney's Office Stephen P. Clark Center, Suite 2810 111 Northwest First Street Miami, Florida 33128 Mark E. Grafton, Esquire Shubin & Bass Third Floor 46 SW 1st Street Miami, Florida 33133 David Winker, Esquire David J. Winker, P.A. 2222 Southwest 17th Street Miami, Florida 33145 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128

Florida Laws (5) 120.569120.57163.3167163.3177163.3184 DOAH Case (4) 09-1231GM20-2857GM90-3580GM90-7793GM
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IN RE: FLORIDA POWER AND LIGHT MARTIN UNIT 8 POWER PLANT SITING APPLICATION NO. PA89-27A vs *, 02-000573EPP (2002)
Division of Administrative Hearings, Florida Filed:Indiantown, Florida Feb. 08, 2002 Number: 02-000573EPP Latest Update: Jul. 27, 2004

The Issue The issue to be resolved in this portion of this power plant site certification proceeding is whether the site for the proposed Florida Power & Light Company (FPL) Martin Unit 8 Expansion Project (Project) is consistent and in compliance with the existing land use plans and zoning ordinances of Martin County, Florida, pursuant to Section 403.508(2), Florida Statutes.

Findings Of Fact FPL provides electricity in its service area that stretches from the Florida/Georgia border in the north to the Florida Keys in the south, and along Florida's west coast to just south of Tampa. FPL has been providing electricity to customers in Florida since 1926. FPL currently serves about 7 million residents of Florida. FPL operates 14 power plants in the State of Florida, including its Martin Plant located near Lake Okeechobee. The existing FPL Martin Plant site is located approximately 7 miles west of the community of Indiantown, Florida, and approximately 20 miles west of Stuart, Florida. The plant site is located in the unincorporated area of Martin County, Florida. The site is bounded along its northern and eastern edges by State Road (S.R.) 710, which provides the principal access to the plant site. The Martin Plant site comprises approximately 11,300 acres, and contains an approximately 6,800-acre cooling pond. The site also contains existing transmission line corridors located to the east of the plant. The Martin site presently contains several existing electrical generating units. Martin Units 1 and 2 are large conventional steam-electric units, each with generating capacity of approximately 800 megawatts (MW). These two units burn natural gas and/or residual oil. They have been in service since 1980 and 1981, respectively. Units 3 and 4 are combined cycle units, each with a generating capacity of approximately 450 MW. They burn natural gas and are permitted to burn light oil as well. These two units have been in service since 1994. Units 8A and 8B are simple cycle, advanced combustion turbines, each with generating capacity of approximately 170 MW. They burn natural gas and light oil and have been in operation since 2001. Units 1 and 2 were constructed prior to the implementation of the Florida Electrical Power Plant Siting Act. Units 3 and 4 were originally certified under the PPSA. The new Unit 8 will be located in that portion of the Martin Plant Site, which was previously certified under the PPSA. The Unit 8 Project area is approximately 110 acres, with approximately 15 acres to be occupied by actual power plant facilities. The Project area is a previously-graded flat area with scrub grass on the surface. No substantial clearing will be required for the Unit 8 Project, "[j]ust grading for the foundations." The proposed Martin Unit 8 would incorporate the two existing combustion turbines (Units 8A and 8B), and add two additional combustion turbines, four heat recovery steam generators (one for each combustion turbine), and a single new steam turbine generator. The two new combustion turbines and the new steam turbine will be placed to the east of the existing Units 8A and 8B. A new cooling tower may potentially be built to serve the new unit as an alternative to connecting the new unit directly to the cooling pond. In any event, the existing cooling pond will supply cooling water for Unit 8. The two existing combustion turbines each have a capacity of approximately 170 MW. The new Unit 8 generating equipment will provide approximately 800 MW of additional generating capacity. Therefore, the total capacity of Martin Unit 8 will be approximately 1,140 MW. The new Unit 8 will be supplied with natural gas by an existing natural gas lateral serving the Martin Plant site, or possibly by a new gas pipeline. Light oil will be delivered by truck and stored in two on-site fuel tanks, one of which will be a new tank. The maximum height of any of the new structures for Martin Unit 8 will be 150 feet. The new Unit 8 will share several existing facilities located at the Martin site. These include use of the existing: cooling pond, plant electrical substation, water tanks, light oil tank, electrical transmission facilities, and control building. The new Unit 8 will connect to FPL's electrical transmission system at the on-site substation at the Martin Plant where the voltage of the electricity from the new Unit will be increased for transmission over FPL's transmission system. In addition to the new power plant facilities, FPL plans to construct two new 230 kilovolt transmission lines, which are integration facilities which will maintain the reliability of the transmission system. A portion of the transmission lines will be located within existing FPL electrical transmission line rights-of-way. However, one segment of the new transmission facilities will be located within a new right-of-way, approximately eight and one-half miles long. FPL seeks certification of this new eight and one-half mile portion of the proposed Indiantown - Martin No. 2 line (the new offsite transmission line) as part of its Martin Unit 8 Site Certification Application. The new offsite transmission line follows S.R. 76 and County Road (C.R.) 726 as those roadways pass west to east near the community of Indiantown. FPL distribution lines already occupy the existing route. The proposed route of the new ROW segment consists mainly of a mix of citrus, pasture lands and some multi-acre residential lots. The new offsite transmission line will be constructed on single-pole concrete structures, which are embedded into the ground. These structures will be unguyed, except where they make right turns to cross the St. Lucie Canal. The remaining portion of the approximately 21-mile transmission line project will be located in rights-of-way already occupied by FPL's 230 and 500 kilovolt transmission lines. The Unit 8 Project will be located within the 2,192- acre portion of the Martin Plant site which was certified under the Power Plant Siting Act in 1991. In 1990, the Siting Board entered a Final Order on land use for the original development of Units 3 and 4 determining that the site was consistent and in compliance with the land use plans and zoning ordinances of Martin County, Florida. The Martin Unit 8 Project will be located in an area designated under the Future Land Use Map of the Martin County Comprehensive Plan as "major power generation facilities." That designation is specifically for uses such as proposed Martin Unit 8. In 1989, the Martin County Board of County Commissioners rezoned the 2,192-acre parcel at the Martin Plant site to industrial planned unit development (PUD(i)) zoning, and entered into a Planned Unit Development Zoning Agreement with FPL. PUD zoning is intended to provide flexibility from the strict zoning regulations and development standards. It is designed to encourage a more creative approach to land use planning with specific regulations established to control the development pursuant to the PUD zoning approval. The PUD Zoning Agreement establishes the zoning criteria for the FPL Martin Unit 8 site. The Martin Unit 8 Project has been designed and will otherwise be consistent with the PUD Zoning Agreement approved by Martin County. Specifically, the Martin Unit 8 Project will be located within the area designated as "power block" under the preliminary development plan contained in the PUD Zoning Agreement. The proposed Unit 8 facilities are among the listed permitted uses under the PUD Zoning Agreement. Further, the Martin Unit 8 Project complies with all other applicable provisions of the PUD Zoning Agreement, including those special conditions set forth in the Zoning Agreement to control development within the area subject to the PUD zoning. These include compliance with the size and dimensional criteria; preservation of upland preserve and wetland restoration areas within the site; compliance with specific performance standards and with provisions related to wetlands preservation; hazardous waste management; excavation and fill; noise; protection of archaeological artifacts and threatened or endangered species or species of special concern that may be discovered on the site; and public availability of employment applications during periods of substantial hiring. The Martin County Commission has also granted a special exception to allow heights of structures in excess of 60 feet at the Unit 8 Project site. This special exception for heights applies to the Unit 8 Project Area. The Unit 8 Project will comply with this height exception. Martin County defines utilities to include electrical transmission systems. Such utility facilities are allowed as permitted uses in all the zoning districts which the proposed new offsite transmission line will cross. The PUD Zoning Agreement for the Project site includes approval of a preliminary development plan contained within the Zoning Agreement. The Zoning Agreement further provides that the application for site certification under the PPSA will constitute formal application for a final development plan approval for the PUD. The PUD Zoning Agreement also provides that the site certification order issued under the PPSA will constitute the final development plan approval. Thus, if the Siting Board issues a certification order for the Martin Unit 8 Project, it will also constitute approval of the amendment to the existing final development plan under the terms of the PUD Zoning Agreement. The PUD Agreement is not specific as to the amount of generating capacity in the area subject to the PUD Zoning Agreement. FPL published Notice of Land Use Hearing for a Power Plant Siting Application to be located in Martin County, Florida, in The Stuart News on March 15, 2002 and also in the Indiantown News on both March 21 and March 28, 2002. Notice of the land use hearing was published in the Florida Administrative Weekly on March 22, 2002.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Siting Board determine that the site of the FPL Martin Unit 8 Project, as described by the evidence presented at the final hearing, and including the offsite transmission line, is consistent and in compliance with existing land use plans and zoning ordinances of Martin County, pursuant to Section 403.508(2), Florida Statutes. DONE AND ENTERED this 10th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2002. COPIES FURNISHED: Peter C. Cunningham, Esquire Douglas S. Roberts, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Scott A. Goorland, Esquire Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Blvd., Mail Station 35 Tallahassee, Florida 32399-3000 Tyson Waters, Esquire Krista Storey, Esquire Martin County Attorney's Office 2401 Southeast Monterey Road Stuart, Florida 34996 Ross Stafford Burnaman, Esquire Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Colin Roopnarine, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Robert V. Elias, Esquire Florida Public Service Commission Gerald Gunter Building 2450 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Roger Saberson, Esquire Treasure Coast Regional Planning Council 70 Southeast Fourth Avenue Delray Beach, Florida 33483-4514 Susan Roeder Martin, Esquire Assistant General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000

Florida Laws (8) 403.501403.502403.506403.507403.508403.517403.5175403.519
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IN RE: MARTIN COAL GASIFICATION/COMBINED CYCLE PROJECT POWER SITE CERTIFICATION APPLICATION, FLORIDA POWER & LIGHT COMPANY, PA89-27 vs *, 90-000259EPP (1990)
Division of Administrative Hearings, Florida Filed:Indiantown, Florida Jan. 08, 1990 Number: 90-000259EPP Latest Update: Dec. 28, 1990

The Issue In this proceeding, FPL seeks approval to construct and operate Martin Units 3 and 4, fueled by natural gas and distillate oil, under the provisions of Section 403.511, F.S. Additionally, FPL seeks a determination that the proposed site of the three-phase Project and the attendant environmental resources have the capacity ultimately to accommodate all three phases of the Project consisting of a total 1600 MW of generating capacity fueled by coal-derived gas, natural gas or distillate oil. Such an ultimate site capacity certification may be granted pursuant to Section 403.517, F.S. and Rule 17-17.231, F.A.C.

Findings Of Fact The DER published notices of this land use hearing on February 8, 1990, in the Palm Beach Post, on February 11 and February 12, 1990, in the Stuart News, and on February 14, 1990, in the Indiantown News. Notices of this hearing also were published in the Florida Administrative Weekly on February 9, 1990 and February 23, 1990. The DER mailed notice of this hearing to the chief executives of the local and regional authorities with responsibility for zoning and land use planning whose jurisdiction includes the site. (DER Exhibit 1) The Applicant, FPL, posted a notice of this hearing at the proposed site. (FPL Exhibit 19) The Martin Coal Gasification/Combined Cycle Project FPL proposes to construct and operate combined cycle generating units with a total capacity of 1,600 megawatts and coal gasification units to supply coal gas to these combined cycle units. The four combined cycle units, known as Units 3, 4, 5, and 6, will consist of combustion turbines, heat recovery steam generators, and steam turbines, which will be used to generate electricity. The coal gasification units will produce a fuel gas from coal and oxygen. Sulfur and particulates will be removed from the fuel gas, and the clean gases will be sent to the combined cycle units. (T.28, FPL Exhibit 5) The proposed project also includes a natural gas pipeline that will connect at the main Florida Gas Transmission Pipeline near the Florida Turnpike and extend west and south to the proposed site. (T.23, FPL Exhibit 2) A new 230 kilovolt electrical transmission line circuit will be constructed within an existing FPL transmission line right- of-way between the proposed site and the FPL Indiantown substation. (T.23, FPL Exhibits 1 and 2) The proposed CG/CC project will utilize the existing cooling pond as its source of cooling water. Coal for the project will be delivered over existing rail lines serving the site. A new coal rail loop and coal unloading equipment will be constructed on site. Within the rail loop, a coal storage pile and other facilities will be constructed. The slag by-product from the coal gasification process will be stored on a 550 acre parcel, occupying the northern portion of the project site. (T.26-27, FPL Exhibits 1, 4, and 6D) The Martin CG/CC project will be developed in three phases. During the first phase, two combined cycle units, Units 3 and 4, will be constructed. The second phase will involve the construction and operation of the coal gasification and combined cycle units known as Units 5 and 6. In the third phase, gasification units will be constructed to serve Units 3 and 4. (T.31-32) Ultimate Site Capacity for Martin CG/CC Project The site for the proposed Martin CG/CC Project is a 2,192 acre tract located within the existing 11,300 acre FPL Martin Plant site located in western Martin County, Florida. (FPL Exhibits 1 and 2) This site lies approximately 22 miles west of Stuart, five miles northwest of Indiantown and five miles east of Lake Okeechobee. (T.22-23, FPL Exhibit 2) State Road 710 runs along the northeast side of the site. The St. Lucie Canal lies to the south of the site. (T.24, FPL Exhibits 2 and 3) A portion of the Martin Plant site is occupied by two existing 800 megawatt natural gas and oil-fired units. (T.24) A 6,800 acre cooling pond is also located within the existing site. (T.24, FPL Exhibits 1 and 3) The proposed alignment for the natural gas transmission line to serve the proposed CG/CC Project is within a 1,200 foot-wide corridor lying along the center line of State Road and County Road 714, running west from the junction with the Florida Turnpike. This corridor turns south at the junction with an existing FPL transmission right-of-way, and follows that right-of-way, becoming a 600 foot wide corridor, until it reaches the proposed CG/CC site. The permanent 50-foot wide right-of-way for the pipeline will be located within this corridor. (T.23, 25-26, FPL Exhibit 2) The proposed site for the electrical transmission line upgrade to be undertaken as part of this project is an existing FPL transmission line right-of-way running south and east from the Martin Plant site to an existing substation near Indiantown. (T.23, FPL Exhibits 1 and 2) FPL proposes in its Site Certification Application (SCA) an ultimate site capacity of 1,600 megawatts of combined cycle generating capacity to be fueled by natural gas, coal-derived gas and fuel oil. FPL's SCA proposes certification in this proceeding for combined cycle Units 3 and 4 burning natural gas or fuel oil, and CG/CC Units 5 and 6 burning coal-derived gas, natural gas or fuel oil. Additionally, the SCA seeks an ultimate site capacity determination that would allow the later addition of coal gasification units to provide coal-derived gas to Units 3 and 4. (FPL Exhibit 1, (Section 1.5)) Presently, the Florida PSC is considering the need for Martin Units 3 and 4. The PSC pre-hearing officer determined that the PSC would not consider the need for Units 5 and 6 at this time. However, that order recognizes that FPL could still proceed to seek an ultimate site capacity certification for Units 5 and 6. (FPL Exhibit 22) Consistency and Compliance of the Project Site with Local Land Use Plans In August 1989, the Martin County Board of County Commissioners (BOCC) amended the April 1, 1982 Martin County Comprehensive Plan to change the land use designation for the site of the proposed Martin CG/CC project from a land use designation of Agricultural to Industrial. This amendment was adopted in response to an application filed by FPL, along with a petition to change the zoning for the proposed site from A-2 (agricultural) to Planned Unit Development (industrial), or PUD(i), and to grant a height exception for structure heights greater than 60 feet. (T.47-50, FPL Exhibits 10, 13 and 14) The 1982 Martin County Comprehensive Plan, as subsequently amended, was the local land use plan in effect on the date FPL filed this SCA. (FPL Exhibit 7) The Electric Utility Element of that plan encouraged the expansion of the power plant facilities located at FPL's Martin Plant Site. This element also encouraged future development at the site to occur under a planned unit development industrial zoning classification. (T.48, FPL Exhibit 7) On August 8, 1989, the Martin County BOCC voted to amend its 1982 Comprehensive Plan to designate the proposed site as industrial. This adoption reflects the Martin County BOCC's determination that the proposed project is consistent with that Plan. (T.50, 53) The proposed CG/CC project was also reviewed by the Martin County BOCC for consistency with Martin County's then developing 1990 Comprehensive Growth Management Plan. The concurrent rezoning to PUD(i) was evaluated for consistency with the proposed Capital Improvement Element and the County's proposed 25% upland preservation policy. The project, as proposed, was found to be consistent with both of these policies. (T.56-58, FPL Exhibit 13 (Exhibit "C")) The proposed site is designated for "major public utility" use on the Land Use Map adopted in February, 1990, by the Martin County BOCC as part of its 1990 Growth Management Plan. (T.58, FPL Exhibits 11 and 12) Consistency of the Project Site with Local Zoning On August 8, 1989, the Martin County BOCC rezoned the proposed CG/CC site to a planned unit development (industrial) zoning classification. (T.50, FPL Exhibit 13) The planned unit development, or PUD, zoning provides more flexibility than traditional zoning in allowing a mix of different land uses and densities while still achieving objectives of land use compatibility and creation of open space. It is a performance-based zoning that typically involves a specific site plan and a set of performance standards for the proposed development. (T.63-64, FPL Exhibit 15) The PUD(i) zoning criteria for the Martin CG/CC project are contained in a document titled "Martin Expansion Project Planned Unit Development Zoning Agreement" between FPL and the Martin County BOCC, dated August 8, 1989. This agreement refers to the proposed CG/CC project as the Martin Expansion Project. (FPL Exhibit 6) The PUD Agreement establishes certain conditions and standards upon which construction and operation of the CG/CC project may be undertaken at the proposed site. The Agreement incorporates and references various other local regulations with which a project at this site must comply. (T.62) The PUD(i) zoning agreement also recognizes that final approval for the project will be obtained under the Florida Electrical Power Plant Siting Act and that the final development plan of approval contemplated by the Agreement would be obtained through this certification process. (T.62-66, FPL Exhibit 6) The PUD(i) Agreement provides that FPL shall have the right to develop the project in accordance with applicable laws, ordinances and regulations; with the provisions and requirements of the Zoning Agreement; and with the Preliminary and Final Development Plans. (T.66, FPL Exhibit 6) This vesting of rights is consistent with Section 1-12C of the Preamble of the subsequently-adopted Comprehensive Growth Management Plan for Martin County which addresses vested rights. That section provides that development orders approved prior to the adoption of the 1990 Comprehensive Growth Management Plan shall not be considered to be in conflict with this plan provided the development is continuing in good faith, pursuant to its established timetable. (T.66, FPL Exhibit 11) The timetable for development included in the PUD(i) Agreement recognizes the site certification process as part of the timetable for this development. (FPL Exhibit 6 (Exhibit "E")). Exhibit D to the PUD(i) Zoning Agreement is a Preliminary Development Plan for the CG/CC project. This exhibit provides a conceptual layout for the proposed project, but provides a level of detail that will accommodate changes to the actual site layout made during the licensing and final design processes. The CG/CC Project, as proposed in the SCA, is consistent with this Preliminary Development Plan. (T.30-31, 69-70, FPL Exhibit 6) A development schedule for the proposed project is established in Exhibit E to the PUD(i) Agreement. This timetable contemplates and incorporates site certification by the Governor and Cabinet. (FPL Exhibit 6) FPL will be able to develop all 1,600 MW of CG/CC units as proposed in the SCA consistent with this timetable. (T.32-33) Seventeen (17) Special Conditions are established for the Martin Expansion Project in Exhibit F to the PUD Agreement. (FPL Exhibit 6) FPL has committed to meet all of the Special Conditions (T.34-40) and its design, as developed to date and presented in the site certification application, is consistent and in compliance with all seventeen Special Conditions. (T.40,76-77) They are: Permitted uses on the site are set out in Special Condition 1, allowing uses including combined cycle electric generating units, coal gasification facilities, coal handling and storage facilities, by-product storage area, and other associated facilities. A conceptual layout for a typical 1,600 megawatt coal gasification/combined cycle plant is shown on Attachment 1 to that Exhibit F, a plan that is subject to modification. (T.34,69-70, FPL Exhibit 6) The uses permitted are described in greater detail in attachment 2 to that Exhibit F. (FPL Exhibit 6) Special Condition 2 allows development of the project with an interim potable water system, pursuant to a separate interim water system agreement, an agreement which is consistent with Martin County's interim water policy in article III, Division 2 of Chapter 31 of the Martin County Code. (T.35,71, FPL Exhibit 6 and 15) Special Condition 3 allows the use of an onsite aerobic treatment facilities for a sanitary waste water treatment system. (T.35, FPL Exhibit 6) Special Condition 4 provides for 313 acres of upland preserve and restoration areas as shown on the approved development plans. This condition on upland preservation complies with the requirements of the 1982 Martin County Comprehensive Plan and was designed to meet the requirements of the upland preservation policy of the 1990 Comprehensive Growth Management Plan. The upland preservation condition also satisfies the requirements of the Martin County Landscaping Code in Chapter 23, Article III, which requires that one-half of the open space requirements be met with native upland plant preserve areas. (T.71- 72, FPL Exhibits 6 and 15) The size and dimension criteria of CG/CC facilities are governed by Special Condition 5, which references Attachment 1 to Exhibit F of the PUD Agreement, showing the relative sizes and dimensions of the planned facilities. (T.36, FPL Exhibit 6) Special Condition 6 establishes performance standards which are consistent with the provisions of Section 33-581.44(G) and (H) of the Martin County Code. (T.73, FPL Exhibit 15) The performance standards establish limits on the density of smoke, size of particulates, emissions of odors, dust and dirt, and of obnoxious gases and fumes, set-backs for unenclosed buildings, fire protection measures, building heights, perimeter buffers adjacent to residential uses, and lighting. (T.36-37, FPL Exhibit 15) Several of these special performance standards provide additionally for compliance to be shown as part of the final certification order under the Florida Electrical Power Plant Siting Act. (FPL Exhibit 6) Special Condition 7 provides for a wetlands enhancement and restoration program to mitigate and compensate for loss of wetlands by the project's development. This condition complies with the wetlands exemption criteria for utilities under Section 4-3(b), Waivers of the Martin County Comprehensive Plan. (T.73, FPL Exhibits 6 and 7) Under Special Condition 8, FPL is to pay $81,000 for community facilities in the Indiantown area in lieu of constructing a bike path along State Road 710. (T.77, FPL Exhibit 6) A hazardous waste management plan, consistent with a hazardous waste management plan attached to the Zoning Agreement, is required by Special Condition 9. Under Special Condition 10, the SCA, which constitutes the application for final development plan approval, is to show compliance with the Martin County Excavation and Fill Ordinance to the maximum extent practicable. These pertinent provisions of the Martin County Code are Sections 33-804, 805, 806, and 809. (T.38-39, 75, FPL Exhibits 6 and 15) Landscaping around the administration buildings and parking areas is required by Special Condition 11. This condition satisfies the requirements of the Martin County Landscape Code, Chapter 23, Article III of the Martin County Code. (T.75, FPL Exhibits 6 and 15) Special Condition 12 requires that plant operations not cause unreasonable levels of sound to reach the boundary of any existing adjacent residential district. FPL is to provide general public notice of any planned steamblows. No quantitative noise standards are established by Martin County. (T.76, FPL Exhibit 6) Special Conditions 13 and 14 require that certain precautions be taken in the event that archaeological artifacts or endangered plants and animals are discovered on the site. (T.76, FPL Exhibit 6) Under Special Condition 15, FPL is to phase the construction of the by- product storage area beginning from its western boundary and progressing eastward. FPL's proposed site layout demonstrates that the initial by-product storage cells will be constructed in the southwest corner of that area in order to comply with this provision. (T.39-40, FPL Exhibits 4 and 6) Special Condition 16 requires FPL to avoid filling wetlands in the by- product storage area if the slag by-product is successfully marketed. Under Special Condition 17, FPL is to make employment applications available in Indiantown area during periods of significant hiring. These are project specific conditions proposed by the Martin County BOCC. (T.74-77, FPL Exhibit 6) The CG/CC Project, as designed, committed to by FPL, and proposed in the site certification application, is consistent and in compliance with the foregoing provisions of the PUD(i) Zoning Agreement. (T.40, 78; FPL Exhibits 1 and 6) Consistency and Compliance of the Electrical Transmission Line and Natural Gas Pipeline with Local Land Use Plans and Zoning Ordinances Electrical transmission lines are permitted land uses in all land use classifications under the 1982 Martin County Comprehensive Plan and its Electric Utility Element. The 1982 Plan is silent concerning natural gas pipelines. (T.78-79, FPL Exhibit 7) The Martin County Zoning Code provides, in Section 35- 5.5(9), that normal distribution facilities, such as transmission lines and natural gas distribution lines, are excepted from the definition of those utilities that are treated as advertised conditional uses. Transmission lines and gas pipelines are, therefore, permitted uses in all zoning districts. (T.78- 79, FPL Exhibit 15) This conclusion is confirmed by the opinion of Michael F. Sinkey, the Martin County Zoning Administrator. (T.84, FPL Exhibit 18) Consistency and Compliance with Height Exception On August 8, 1989, the Martin County BOCC adopted a special exception to allow heights in excess of 60 feet for facilities associated with the CG/CC project. The project, as proposed, is consistent and in compliance with the provisions of this height exception. The PUD(i) Zoning Agreement in Special Condition 6 establishes maximum heights of the various project facilities; and the proposed CG/CC project, as designed, committed to by FPL, and proposed in the site certification application, complies with all of them. (T.27,40, FPL Exhibits 6 and 14)

Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the Governor and Cabinet, sitting as the Siting Board, enter a final order finding that the proposed Martin Coal Gasification/Combined Cycle project and its site (including associated linear facilities), as proposed in the Site Certification Application, are consistent and in compliance with existing land use plans and zoning ordinances. DONE AND RECOMMENDED this 10th day of May, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gary C. Smallridge Asst. General Counsel DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steve Hall, Esquire and Kathryn Funchess Senior Attorney Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 MARY CLARK 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 10th day of May, 1990. John Fumero, Esquire South Florida Water Mgmt District P.O. Box 24680 West Palm Beach, FL 33416-4680 Suzanne S. Brownless, Esquire Florida Public Service Commission Fletcher Building 101 East Gaines St., Rm. 212 Tallahassee, FL 32399-0850 Gary P. Sams, Esquire Douglas S. Roberts Box 6526 Tallahassee, FL 32314 Fred W. Van Vonno Asst. County Attorney 2401 SE Monterey Rd. Stuart, FL 34996 Dan Cary, Executive Director Treasure Coast Regional Planning Council 3228 SW Martin Downs Blvd., Suite 205 Palm City, FL 33490 Roger G. Saberson Attorney for Treasure Coast Regional Planning Council 110 D. Atlantic Avenue Delray Beach, FL 33444 Hamilton S. Oven, Jr., P.E. DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400

Florida Laws (8) 403.501403.502403.504403.507403.508403.511403.517403.519
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FLORIDA POWER AND LIGHT COMPANY (LAUDERDALE REPOWERING PROJECT) vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 89-006636EPP (1989)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Dec. 01, 1989 Number: 89-006636EPP Latest Update: Nov. 21, 1990

Findings Of Fact The Department of Environmental Regulation published notices of this land hearing on January 25, 1990, in the Miami Herald and on January 26, 1990, in the Ft. Lauderdale Sun-Sentinel and the Ft. Lauderdale News. Notice of this hearing was also published in the Florida Administrative Weekly on February 2, 1990. The DER mailed notice of this hearing to the chief executives of the local and regional authorities with responsibility for zoning and land use planning whose jurisdiction includes the site. The Applicant, FPL, posted notices of this hearing at the proposed site. The Lauderdale Repowering Project FPL submitted an application for site certification for the Lauderdale Repowering Project which was filed with DER on November 29, 1989. The application was determined complete by DER on December 13, 1989. The project will involve the "repowering' of existing Units 4 and 5 at FPL's Lauderdale Plant Site, resulting in the replacement of the unit's steam generators with new combustion turbines and heat recovery steam generators. The project will increase the net generating capacity at the site by approximately 680 megawatts. The existing 24 gas turbines at the Lauderdale Site will be unaffected by the Repowering Project. In addition, new water and wastewater treatment facilities and stormwater runoff ponds will be constructed as part of the project. The tallest structures on site will be the 150 foot tall stacks associated with the new hear recovery steam generators. No principal structure will be constructed closer than 25 feet from the site's south boundary along the Dania Cutoff Canal. The Site The site for the proposed Lauderdale Repowering Project is a previously-developed, 392-acre parcel of land in southeastern Broward County. An adjacent ten-acre parcel will be utilized temporarily during construction for parking and equipment laydown. The site lies about 1 mile east of the Florida Turnpike and 1 mile west of Interstate 95. State Road 84 and Interstate 595 are north of the site. Griffin Road is about one-half mile south off the site. The site is bounded on the north and west by the South New River Canal and on the south by the Dania Cutoff Canal. The site has been utilized for the generation of electricity since the 1920's. Current use of the site consists of two fossil-fuel-fired steam generating units (which will be repowered) and 24 gas turbine units. The total net generating capacity of the existing Lauderdale Plant is 1,248 megawatts. Consistency of the Site with Local Land Use Plans and Zoning Ordinances The site was located entirely within the unincorporated area of Broward County on the dates the application was filed and determined complete. A small portion of the southeast corner of the site was annexed into the City of Hollywood, Florida in December, 1989 but subsequent to the submittal of the Site Certification Application. The applicable land use plans and zoning ordinances are those adopted by Broward County in effect as of the date of the application. Since the annexation occurred after the application was filed and determined complete, the land use plans and zoning ordinances for the City of Hollywood cannot be considered as part of this land use hearing. The City of Hollywood does not have land use designations or zoning classifications assigned to the portion of the site that has been annexed into the City of Hollywood. The land use plan that governs the Lauderdale Site for purposed of this hearing is the Future Unincorporated Area Land Use Element of the Broward County Board of County Commissioners on March 1, 1989, and its accompanying map. The applicable zoning regulations are Broward County's Zoning Ordinance as codified in Chapter 39 of the Code of Broward County. The entire proposed site for the project is designated as either Utility or as Industrial under the Future Unincorporated Area Land Use Element and its accompanying map. Electrical power plants, such as that proposed by FPL, are uses permitted in both the Utility and Industrial designations under the Future Unincorporated Area Land Use Element. The site is also consistent with location-oriented objectives and policies of the Future Unincorporated Area Land Use Element concerning Utility and Industrial designations. The site is similarly designated for utility and industrial uses under the Broward County Land Use Plan. The Broward County Land Use Plan was prepared as a guide in the preparation of the Future Unincorporated Area Land Use Element. The Broward County Planning Council has certified the Future Unincorporated Area Land Use Element as the effective land use plan for the unincorporated areas of Broward County. The site is zoned M-3 under the Broward County Zoning Ordinance, which is the general industrial zoning district permitting a variety of industrial uses. Electrical power plants are a permitted use within the M-3 zoning district as electrical power plants are not prohibited by Section 39-1073 of the Broward County Zoning Code; are not otherwise prohibited by other resolutions or by law; and are not listed as permissible only in an M-4 or an M-5 zoning district. The DER, the DCA, and Broward County concur that the location of the Lauderdale Repowering Project at the Lauderdale Site is consistent and in compliance with existing land use plans and zoning ordinances.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order finding that the proposed Lauderdale Repowering Project Site is consistent and in compliance with existing land use plans and zoning ordinances. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April 1990. CLAUDE B. ARRINGTON 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 4th day of April 1990. * NOTE: THE APENDIX TO THIS RECOMMENDED ORDER IS AVAILABLE FOR REVIEW IN THE DIVISION OF ADMINISTRATIVE HEARING'S CLERK'S OFFICE. COPIES FURNISHED: Peter C. Cunningham, Esquire Douglas S. Roberts, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Hamilton S. Oven, Jr., P.E. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Steven Pfeiffer, General Counsel Kathryn Funchess, Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Sarah Nail, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Suzanne S. Brownless, Esquire Division of Legal Services Florida Public Service Commission 101 East Gaines Street Fletcher Building, Room 212 Tallahassee, Florida 32399-0850 Gary Smallridge Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Noel M. Pfeffer, Esquire Deputy County Attorney Governmental Center, Suite 423 115 South Andrews Avenue Fort Lauderdale, Florida 33301 Thomas R. Henderson Broward County Resource Recovery 115 South Andrews Avenue, Room 521 Fort Lauderdale, Florida 33301 Patricia Woodworth, Director Land and Water Adjudicatory Commission Planning and Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001

Florida Laws (3) 120.57403.503403.508
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MANASOTA-88, INC. AND GLENN COMPTON vs SARASOTA COUNTY AND DEPARTMENT OF COMMUNITY AFFAIRS, 02-003897GM (2002)
Division of Administrative Hearings, Florida Filed:Sarasota, Florida Oct. 03, 2002 Number: 02-003897GM Latest Update: Aug. 16, 2004

The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.

Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2004.

Florida Laws (5) 120.569120.595163.3161163.3177163.3184
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PGSP NEIGHBORS UNITED, INC. vs CITY OF ST. PETERSBURG, FLORIDA, 20-004083GM (2020)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Sep. 14, 2020 Number: 20-004083GM Latest Update: Jan. 09, 2025

The Issue Whether the small-scale amendment to the Future Land Use Map (FLUM) of the City of St. Petersburg's (the City) Comprehensive Plan (Comprehensive Plan), adopted by Ordinance 739-L (Ordinance) on August 13, 2020, is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2020).1

Findings Of Fact The Parties and Property Petitioner, PGSP, is a membership organization, with 118 members. It is registered with the State of Florida as a not-for-profit corporation located in St. Petersburg, Florida. PGSP's stated mission is to promote healthy urban development throughout St. Petersburg; it was formed to promote development and growth compatible with surrounding neighborhoods. It works with the City and residents to ensure new development is cohesive with existing and planned environmental and infrastructural demands. Respondent, City of St. Petersburg, is a political subdivision of the State of Florida that is subject to the requirements of chapter 163, Part II, Florida Statutes. The subject property is located at 635 64th Street South, St. Petersburg, Pinellas County, Florida (Property). It is owned by Grace Connection of Tampa Bay, Inc., operating as Grace Connection Church (Church). The Church was the applicant for the Amendment at issue but is not a party to this action. The Property is triangular in shape with a total of 4.66 acres. To the north and west, the Property is bounded by Bear Creek, a natural water feature. To the east, the Property is bounded by 64th Street South, a "Collector, City Road." To the south, the Property is bounded by an undeveloped 40-foot right-of-way. A portion of the Property that abuts Bear Creek is located in a Coastal High Hazard Area (CHHA).3 Respondent has not sought changes to the portion of the Property that is within the CHHA. 3 The Property is also within the projected storm surge in Hurricane Evacuation Level "D," which is a Pinellas County emergency management designation, and not a part of the City's Comprehensive Plan. The Property is currently categorized for Neighborhood Suburban (NS-1) zoning (which is separate from its Future Land Use Category). A substantial number of PGSP members live within the City, in close proximity to the Property and allege they will be adversely affected by the concomitant impacts of increased densities in the community as addressed in these proceedings. The Ordinance The Church's application sought to amend the FLUM of the Comprehensive Plan. The application divided the non-portion of the CHHA into three portions and sought to make the following changes to the Future Land Use categories: A PORTION OF THE SUBJECT PROPERTY (APPROX. 4.33 ACRES), FROM I (INSTITUTIONAL) TO RM (RESIDENTIAL MEDIUM); A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.21 ACRES), FROM I (INSTITUTIONAL) TO RU (RESIDENTIAL URBAN); AND A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.04 ACRES), FROM RU (RESIDENTIAL URBAN) TO RESIDENTIAL MEDIUM (RM). On August 13, 2020, the City Council had a public hearing on the Church's appeal of the denial of its application by the Planning Commission. At this hearing, PGSP members submitted oral or written comments, recommendations, or objections to the City. At the August 13 meeting, the City Council adopted the Ordinance. This had the effect of adopting the Amendment and changing the Future Land Use categories to the Property. The Ordinance instituted a small-scale amendment to the FLUM, as defined by section 163.3187(2). Maximum Density Petitioner argues the Ordinance is not "in compliance," as defined in sections 163.3184(1)(b) and 163.3187(4). Specifically, PGSP attacks the Amendment because it does not (1) direct "population concentrations" away from areas designated as a CCHA; (2) provide for compatible land use transitions; and (3) preserve the existing character of the surrounding areas. Each of these claims are either partially or wholly dependent on the increased maximum density for the Property after the Amendment. As such, the threshold issue of density must be addressed. This dispute involves the 4.37 acre that are changed from the Residential Urban (RU) and Institutional land use categories to Residential Medium (RM) made up of approximately 4.33 acres from Institutional to RM and approximately 0.04 acres from RU to RM. The "Institutional" designation allows a density of 12 dwelling units per acre but limits residential use as an accessory to the primary institutional use, which in this case is a church.4 The Church submitted the application for the FLUM amendment because it ultimately seeks to sell the Property for multi-family housing development, which would not be a proper use in an area designated "Institutional." The Future Land Use categories for the area to the north and east of the Property are RU, which have a density of 7.5 units per acre. See Comprehensive Plan Policy LU 3.1A.2. This area is primarily made up of single-family homes. The southern boundary of the property is also the municipal border between St. Petersburg and an unincorporated portion of Pinellas County. This area is governed by the Pinellas County FLUM and Pinellas County Comprehensive Plan. The adjacent property to the south is a mobile home park development which has a residential density of 20.4 units per acre. 4 Pursuant to section 16.10.020.2 of the City's Code, Institutional uses include, "government buildings and grounds, and cemeteries, hospitals, houses of worship and schools." In between the RU and RM categories is a category labeled "Residential Low Medium" (RLM). The RLM category allows low to moderately intensive residential development with a density not to exceed ten dwelling units per acre. See Comprehensive Plan Policy LU 3.1A.3. As stated above, the Ordinance would categorize the portion of the Property at issue as RM. The RM category allows medium density residential development and has a maximum density of 15 dwelling units per acre, with a possible maximum density of 30 dwelling units per acre with the qualification of a density bonus. See Comprehensive Plan Policy LU 3.1A.4. PGSP argues the density of the areas designated as RM by the Ordinance will have a maximum possible density of 30 dwelling units per acre. The City argues the maximum density is calculated using the actual density that can be built in the RM areas. As explained below, the practical allowable density of 15 dwelling units per acre with a Workforce Housing Bonus of six, or 21 dwelling units per acre. Petitioner relies on a "Missing Middle Housing" density bonus allowable in Neighborhood Traditional Mixed Residential (NTM) zoning category. This bonus allows up to 30 units per acre as an incentive to develop housing that is lacking in the area. While NTM is an available zoning category for RM, the Plan specifically states that 30 dwelling units per acre is only "permitted in accordance with the Land Development Regulations [LDRs]." Per the LDRs, the NTM designation could not be placed over this parcel because the designation is used as a transitional zoning category in St. Petersburg's traditional neighborhoods. While PGSP's planning expert considered the neighborhood surrounding the Property to be traditional, he admitted his opinion was not based on standards in the Comprehensive Plan or LDR definitions regarding what is considered a traditional or suburban neighborhood. In contrast, Derek Kilborn, a manager in the City's Planning Department, testified about the different characteristics of traditional versus suburban neighborhoods and opined that the neighborhood surrounding the Property is "suburban" according to the terms in the Comprehensive Plan. This determination is bolstered by the existing zoning of the surrounding neighborhood being largely NS-1. The City established it would be impossible for the Property to qualify for the Missing Middle Housing bonus, because the parcel at issue is not in the NTM zoning category. Rather, as explained by Mr. Kilborn's testimony and based on the LDRs and the Comprehensive Code, the RM category only allows a maximum of 15 dwelling units per acre. The Church has not applied to rezone the Property. The Planning Department's director testified, however, that if the Church had applied for a rezoning for the Property to NTM, the maximum number of dwelling units would be less than the numbers asserted by Petitioner due to the requirements for spacing, alleyways, and height restrictions required in NTM zones. The Property is eligible for a Workforce Housing density bonus. This bonus would increase the maximum density by six dwelling units for workforce housing. The City's final density calculation incorporated the Workforce Housing bonus and determined the maximum density for the RM portion of the Property to be 21 dwelling units per acre. PSGP did not prove beyond fair debate that the actual density of 21 units per acre is an erroneous calculation or contrary to the Comprehensive Plan. Consistency with Objective CM 10B and Policy CM 10.65 Comprehensive Plan Objective CM 10B states: The City shall direct population concentrations away from known or predicted coastal high hazard areas consistent with the goals, objectives and policies of the Future Land Use Element. The phrase "Population concentrations" is not defined by the Comprehensive Plan. The only policy referring to "directing" related to Objective CM 10B is Policy CM 10.6, which states: The City shall direct population concentrations away from known or predicted coastal high hazard areas by not locating water line extensions in the coastal high hazard area, beyond that which is necessary to service planned zoning densities as identified on the Future Land Use Map. The remaining policies related to this Objective involve the placement of transportation and infrastructure, expenditures for flood control, and the operation of roads in a CHHA; none of these issues were raised in these proceedings. In fact, other than the reference to placement of water line extensions in Policy CM 10.6, there is no provision establishing standards for what would constitute direction away from a CHHA. The only area on the Property designated a CHHA is near Bear Creek.6 The Ordinance does not increase density in any part of the CHHA portion of the Property. PGSP's planning expert, Charles Gauthier, equated a population concentration as an area with high density. He argued the Ordinance 5 "CM" means Coastal Management in the Comprehensive Plan. 6 Mr. Kilborn testified that in reviewing the property for compliance with the Plan related to CHHA, there was no study or analysis provided to the City by Petitioner or others showing flooding or hazard impacts for the non-CHHA portion of the Property. violated Policy 10.6 because it increased the density of the area on the Property adjacent to the CHHA. At one point, Mr. Gauthier seemed to say this policy encourages higher density future land use categories only in the "central core or spine of the City." Mr. Gauthier maintained the increase in density on the non-CHHA portion of the Property frustrated this policy because only land in the central part of St. Petersburg should experience density increases. PGSP's reasoning would imply any increase in density near any CHHA and not near the "central core" would violate Policy CM 10.6. Elizabeth Abernethy, Director of the Planning Department, testified that "population concentrations" as contemplated by the Comprehensive Plan are not simply increases in density. Rather, the City core had a concentration of high-density categories yielding approximate 80 to 120 dwelling units per acre; she would not characterize 15 or even 30 units per acre as a "high density" much less a "population concentration." Although she concurred that there are "population concentrations" in St. Petersburg centered in its urban core, she disagreed with Petitioner's expert that increased density on the Property created a "population concentration" near the CHHA or Bear Creek area. There was no competent evidence as to where any water line extensions would be located if the Property's Future Land Use Category were to change from RU and Industrial to RM. The City's interpretation of "population concentration" as used in CM 10.6 is reasonable, and therefore, the City's determination that the Ordinance is in compliance with CM 10.6 is fairly debatable. Consistency with LU 3.47 Comprehensive Plan Policy LU 3.4 states: The Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators. 7 "LU" refers to Future Land Use Element in the Comprehensive Plan. Petitioner focuses on compatible land use transition as only a function of density. PGSP argues a parcel categorized as RM (15 unity density) cannot abut an RU (7.5 unit density) categorized parcel because it violates Policy LU 3.4. Rather, it argues the RLM (10 unit density) category should have been used instead. It claims the City "leap-frogged" categories instead of using a "one step" up or down approach. PGSP's expert admits that a direct step down between plan categories is not explicitly required under the Comprehensive Plan language but argues other language related to "limited variation" required the single step. The plain language of Policy LU 3.4, however, simply requires an "orderly land use arrangement." It does not explicitly or implicitly state that the City must use a "step up" approach when determining the appropriate Future Land Use category. Furthermore, PGSP relied on its density calculation of 30 dwelling units per acre to argue that with the surrounding adjacent land density of 7.5 units per acre, there would be a 400% increase in planned residential density. As stated above, the maximum possible density under the Amendment is 21 dwelling units per acre. Moreover, the City points out that that the mobile home park to the south of the Property has an actual density of approximately 20 dwelling units per acre. Thus, the transition from 20 to 21 is an orderly land use arrangement as contemplated by Policy LU 3.4. The FLUM also does not reflect a perfect one up or down transition pattern throughout St. Petersburg. Rather, it shows areas categorized RM abutting areas categorized RU and RLM. In fact, there is an area designated RM which abuts RU parcels within 800 feet of the Property. The City presented adequate evidence establishing the change from Institutional to a residential category fits with surrounding residential use. Moreover, it established that natural and physical barriers on the Property, including creeks and right of ways, provide transition as contemplated by Policy LU 3.4. PGSP does not explain why these barriers are inadequate. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.4. Consistency with Objective Policy LU 3.6 Policy LU 3.6 states: Land use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated. PGSP argues the increase in density as a result of the change in categories from RU to RM is inconsistent with the "character" of the surrounding neighborhood, which is made up of single-family homes. Again, PGSP's argument relies heavily on the density calculation of 30 units per acre. As stated above, this density is only available with a change to the underlying zoning to NTM, which was not sought by the Church in its application. The maximum density applicable to the RM portions of the Property is 21 dwelling units per acre. As stated above, the City established there are other instances of RM abutting RU in the same neighborhood, approximately 800 feet from the Property. Ms. Abernathy testified that, based on the City's historic development pattern, RM is the appropriate transitional category next to RU on a major street (such as 64th Street South) under the Comprehensive Plan. Ms. Abernethy further testified that residential single-family use adjoining either residential multi-family or commercial uses in the City is a "very common development pattern." Therefore, the RM designation is not inconsistent with Policy LU 3.6. Moreover, the RM designation provides for a primary residential use, which the Institutional designation does not. Although PGSP focused solely on density as the grounds for evaluating the "established character of the neighborhood," the City established that several other considerations go into its analysis related to Policy LU 3.6. Beyond looking at existing and proposed densities of the Future Land Use categories, City staff considers the occurrences and relationships between the uses of the property (i.e., residential versus institutional; or residential versus residential) and the existence of similar patterns in the surrounding neighborhood. In this case, the surrounding areas included other areas designated RM and the mobile home park. Determination of the character of the neighborhood was also based on a study of the existing road network and the potential impacts on traffic due to the Amendment. The street classification of 64th Street South as a Future Major was a key consideration in determining whether the changes in the Property were consistent with the character of the surrounding area because that street is the Property's frontage and only access point. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.6. Data and Analysis PGSP also claims the City did not rely on relevant and appropriate data and analysis in adopting the Ordinance and Amendment. PGSP, however, did not conduct or provide the City with any studies.8 Daniel Porter, PGSP's expert in real estate, did not provide a comparative market analysis of the neighborhood or any other industry- recognized report. He proffered only opinion testimony based on email responses from four nearby residents, only one of which alluded to any issues with selling a home in the area. 8 PGSP retained Mr. Gauthier for this administrative proceeding; he did not testify or prepare a report to the Planning Commission or the City Council. Petitioner's members presented no opposing reports or studies beyond lay opinion testimony during the public hearing. Mr. Gauthier testified that in calculating his density and formulating his opinions, he used the City's map set and GIS data from the City's website.9 In contrast, the City relied on several data sources in reaching its conclusions regarding compliance in the Staff Report, in the presentations at the City Council meeting, and at the final hearing. These sources include the Comprehensive Plan and maps; LDRs; GIS aerials and maps; application materials; a narrative from the property owner; plat records; the Pinellas Countywide Plan Rules; and an outside Traffic Impact Statement by a traffic engineering firm, Kimley-Horn. In addition to the Kimley-Horn report, Tom Whalen, the City's transportation planning expert, performed an analysis related to 64th Street South, which was included in the Staff Report. He also testified at the final hearing regarding his sources for that data, including a City-conducted traffic count, use of the Florida Department of Transportation's level of service tables, and the Forward Pinellas Countywide Rules. At the final hearing, the City also presented demonstrative exhibits in the form of enlarged maps illustrating the surrounding neighborhood, the Property, and similar development patterns of RM and RU designations across the City. Regarding the density calculation, the City introduced and explained the reasons and sources supporting its maximum density figure of 21 dwelling units per acre. This included the Pinellas Countywide Plan Rules, the Comprehensive Plan, and LDRs.10 The City established the Ordinance and Amendment are based upon surveys, studies, and data regarding the character of the land. 9 "GIS" is Geographic Information Systems. 10 Moreover, Mr. Kilborn explained that exact density calculations would be finalized during the site plan review process, which involves further surveys and engineering measurements. Petitioner failed to prove beyond fair debate that the Ordinance was not supported by data and analysis, and/or that the City's response to that data and analysis was not appropriate. Ultimate Findings PGSP did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City has provided a preponderance of the evidence, which is both competent and substantial, which supports the findings in the Staff Report and the City Council's adoption of the Ordinance. The City's determination that the Ordinance is in compliance is fairly debatable.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of St. Petersburg Comprehensive Plan Amendment, Ordinance 739-L, is "in compliance" as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Jacqueline Kovilaritch, Esquire City of St. Petersburg Florida One 4th Street North, 10th Floor St. Petersburg, Florida 33731-2842 Michael J. Dema, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Heather Judd, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128

Florida Laws (9) 120.569120.57163.3164163.3177163.3180163.3184163.3187163.3245163.3248 Florida Administrative Code (1) 28-106.216 DOAH Case (6) 09-1231GM15-0300GM18-4743GM18-5985GM19-2515GM20-4083GM
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SUNSET MARINA RESIDENCES OF KEY WEST CONDOMINIUM ASSOCIATION, INC. vs CITY OF KEY WEST AND DEPARTMENT OF ECONOMIC OPPORTUNITY, 12-003047 (2012)
Division of Administrative Hearings, Florida Filed:Key West, Florida Sep. 18, 2012 Number: 12-003047 Latest Update: Dec. 30, 2013

The Issue The issues to be determined in this case are whether the land development regulations (LDRs) adopted by the City of Key West in Ordinance No. 12-16 are consistent with the City of Key West Comprehensive Plan and the Principles for Guiding Development for the City of Key West Area of Critical State Concern, and whether Final Order No. DEO-12-109 of the Department of Economic Opportunity ("DEO"), which approved the LDRs, is valid.

Findings Of Fact The Parties Petitioner is a not-for-profit corporation comprised of owners of condominium units located at the Sunset Marina Residences property within the City of Key West. The City of Key West is a Florida municipality. It is located within the City of Key West Area of Critical State Concern. DEO is the state land planning agency and has the statutory duty to review and approve LDRs adopted in an area of critical state concern. See § 380.05(6), (11), Fla. Stat. (2012).1 The Proposed LDRs The proposed LDRs are in sections 122-1016, 122-1017, 122-1018, and 122-1022 of the City of Key West Code. Petitioner's challenge focused on section 122-1017, which was amended to include emergency and temporary homeless shelters in its description of permitted uses in the PS district: Uses permitted in the public and semipublic services districts are as follows: * * * (13) Essential public services and facilities inclusive of but not limited to; drainage facilities, and emergency services; i.e. staging areas responsive to declared emergency, with the exception of shelters for the homeless, which are regulated as a conditional use; Standing Petitioner’s property is located near two PS districts, one of which is a former City landfill and the other is the site of the Monroe County Jail, Sheriff’s Department administrative offices, and the Keys Overnight Temporary Shelter. Petitioner's condominium units are separated from the inactive landfill by an area of wetlands (designated Conservation Outstanding Waters), which creates a natural buffer. The condominium units are separated from the existing shelter by an inlet of the Gulf of Mexico and a General Commercial zoning district on the opposite upland. In its petition for hearing, Petitioner alleged that it's members would be substantially affected by the proposed LDRs because Petitioner's members have been "involved in the development and enforcement of the City of Key West's Comp. Plan and implementing land development regulations" and they "rely on the Comp. Plan and its implementing land development regulations to protect their quality of life and ability to safely evacuate from the Florida Keys in the event of a hurricane or other emergency." At the final hearing, Petitioner made only a vague reference to adverse effects from the existing Keys Overnight Temporary Shelter, without any identification of the impacts. Petitioner never articulated how the operation of a homeless shelter on the nearest PS-designated lands would result in injury to its members. Petitioner focused on hurricane evacuation, implying that its members would be impeded in their attempt to evacuate Key West if the LDRs are approved. Whether a Homeless Shelter is a Residential Land Use Petitioner argues that proposed section 122-1017 is inconsistent with Policy 1-2.6.1 of the City’s Comprehensive Plan, which describes the land uses allowed under the PS land use designation: The Public and semi-public institutional (PS or HPS) land use designation is intended to accommodate existing public and semi-public services including: governmental administration buildings; public schools and not-for-profit educational institutions; hospital facilities and supportive heath care units; arts and cultural or civic facilities; essential public services and facilities; cemeteries; the City landfill; fire and emergency operation facilities; public and private parks and recreation areas; utilities; extensive open areas comprising major committed public and semi- public open spaces; and other similar activities as shall be identified in the land development regulations. The Comprehensive Plan establishes intensity limits for land uses in PS districts, based on floor area ratio. Residential uses are not among the land uses identified in Policy 1-2.6.1. Residential land uses are regulated elsewhere in the Comprehensive Plan by density limits or dwelling units per acre. Petitioner contends that homeless shelters are residential land uses, which are not allowed in PS districts. The City contends, and DEO agrees, that homeless shelters are not residential uses, but are institutional land uses and also essential public services and facilities, which are authorized land uses in the PS district. The Comprehensive Plan does not define the terms "institutional" or "essential public services and facilities." The term "residential uses" is defined in the Comprehensive Plan as "activities within land areas used predominantly for housing." Petitioner argues that emergency shelters and temporary shelters are types of housing and, therefore, meet the definition of residential uses. The term "housing" is not defined. The term "housing unit" is defined in the Comprehensive Plan as an "occupied or vacant house, apartment or a single room occupied by one individual known as a single room occupancy which is intended as separate living quarters." A homeless shelter does not consist of housing units. Chapter 86 of the City Code defines “residential activities” as single-family/two-family dwellings and accessory units, multifamily dwellings, manufactured housing, group homes, and approved home occupations. Hospitals, nursing homes, and other similar facilities provide temporary housing for the ill, infirm, or injured, but they are not treated as residential activities in the City Code. Emergency shelters, whether for homeless persons or for persons with homes, are not ordinarily thought of as the residences of the sheltered persons. Nevertheless, to add to the confusion, the Comprehensive Plan defines the word "sheltered" as "a person or family whose primary nighttime residence is a supervised, publicly or privately operated shelter." Petitioner argues that homeless shelters are residential in nature because they provide housing for sleeping, dining, bathing, and storage of personal items, all of which are characteristics of residences. The definition of "residential uses" in the Comprehensive Plan, by itself, is not helpful to resolve this dispute. However, when all the definitions and related provisions of the Comprehensive Plan and the City Code are considered together, they reflect a fundamental distinction between residences and institutional housing, such as hospitals, nursing homes, mental institutions, jails, and prisons -- institutional housing is supervised and controlled by the public or private operator; a residence is not. Like a hospital patient, a homeless person does not have control over his or her room and its contents and cannot exclude others. The supervisory staff cannot be locked out and they remain in control of almost all aspects of the occupancy. In a residence, the occupant has exclusive use and control of the premises, or much greater use and control than in institutional housing. Therefore, the City's interpretation of the term "institutional" in Policy 1-2.6.1 of the Comprehensive Plan as including homeless shelters is a reasonable interpretation. Providing shelter to homeless persons is now a public function performed by nearly all cities in Florida and the United States. The City's interpretation of the term "essential public services and facilities" in Policy 1-2.6.1 to include homeless shelters is also a reasonable interpretation. Growth Management In its petition, Petitioner claims that the proposed LDRs would result in "uncontrolled population growth." Petitioner presented no evidence to prove this claim. The claim is speculative. The City presented evidence that the number of homeless persons in the City is decreasing. Due to the difficulty in evacuating Key West during a hurricane, a Building Permit Allocation System ("BPAS") was established to limit future growth so that it will not prevent achievement of the goal to evacuate Key West 24 hours before hurricane-force winds make landfall. BPAS limits are derived from a hurricane evacuation model and are based on the ability of residents to drive to safe areas. Petitioner contends that the LDRs are invalid because they violate BPAS by failing to account for the greater numbers of homeless persons that would have to be evacuated during a hurricane. It has already been noted that Petitioner did not prove its claim that the LDRs would increase the population of homeless persons in the City. The City's hurricane evacuation plan calls for evacuating the "special needs population," including homeless persons (in buses), before the 24-hour period in which the permanent population must be evacuated. Furthermore, the hurricane evacuation model is based on the estimated number of cars involved in the evacuation and the model assumes that the homeless do not have cars. The proposed LDRs would have no effect on BPAS. There are three existing or approved facilities in Key West, two for homeless women and children and one for persons with HIV/AIDS, which were subject to BPAS. Petitioner contends that these projects support its contention that homeless shelters must be accounted for in BPAS. However, the three facilities were shown to be unique because they are essentially apartment buildings. Their occupancy is not supervised in the same way that homeless shelters are supervised. In addition, because these projects are for the working poor who are expected to have automobiles, they will affect the 24-hour evacuation model. Principles for Guiding Development DEO must determine that the challenged LDRs are consistent with the Principles For Guiding Development for the City of Key West, as set forth in Florida Administrative Code Rule 28-36.003(1). Although the petition for hearing included a claim that the proposed LDRs are inconsistent with these principles, Petitioner appears to have abandoned the claim in its proposed recommended order. Providing emergency and temporary shelters for the homeless population achieves two principles for guiding development stated in rule 28-36.003(1): Strengthen local government capabilities for managing land use and development. * * * (h) Protection of the public health, safety, welfare, and economy of the City of Key West, and the maintenance of Key West as a unique Florida Resource. The challenged LDRs strengthen the City’s ability to manage future land development by establishing criteria for the approval of homeless shelter as conditional uses. Providing shelters for the homeless obviously protects the public health, safety, and welfare of homeless persons who use the shelters. The shelters also help to decrease panhandling and loitering in public areas by homeless persons, especially in areas with high visibility and use by tourists.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that Petitioner is not substantially affected by the proposed LDRs, and approving the LDRs adopted by the City of Key West Ordinance No. 12-16. DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 26th day of March, 2013.

Florida Laws (4) 120.57163.3194163.3213380.05
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