The Issue The issue for determination in this case is whether Broward County Ordinance 1999-26, amending the Broward County Comprehensive Plan (Plan), is "in compliance," as defined in Chapter 163, Part II, Florida Statutes, and more specifically whether that portion of PCT 99-2, adopted through Ordinance 1999-26, which limits the use of flexibility units and reserve units east of the Intracoastal Waterway is not "in compliance" under Section 163.3184(1)(b), Florida Statutes, as alleged by the City of Hallandale Beach.
Findings Of Fact Parties The Petitioner, the City of Hallandale Beach (the City or Hallandale) is an incorporated municipality located in Broward County, Florida. The City is a political subdivision of the State of Florida. The City has adopted the City of Hallandale Comprehensive Plan (the City's Plan). In August of 1999, the City of Hallandale officially changed its name to the City of Hallandale Beach. The Respondent, Broward County (the County or Broward) is a political subdivision of the State of Florida. The County is a charter county. The County has adopted the Broward County Comprehensive Plan (the County's Plan). The Respondent, the Department of Community Affairs (DCA), is the state land planning agency which under Chapter 163, Part II, Florida Statutes, is responsible for, among other things, the review of municipal and county comprehensive plans to determine if the plans, and subsequent amendments thereto, are "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes. Standing The transmittal hearing for the proposed amendment was conducted on February 23, 1999. The adoption hearing was held June 22, 1999. During the plan amendment process, the City submitted three letters dated January 22, 1999, February 11, 1999, and April 30, 1999, in opposition to the proposed amendment. These letters, along with other materials in support of and in opposition to the proposed amendment were forwarded to the Department in the adopted amendment package on June 30, 1999. The City is an "affected person" under Section 163.3184(1)(a), Florida Statutes. The County Charter The Charter of Broward County took effect on January 1, 1975. (The current Charter submitted as Joint Exhibit 1 is revised as of November 5, 2002). With reference to land use planning, the County Charter in Article VIII creates the Broward County Planning Council (Planning Council). The Planning Council is the local planning agency for the Broward County Land Use Plan (BCLUP). The Planning Council employs a staff, which includes professional planners, gathers data, performs analyses of data, conducts hearings, and recommends the adoption of land use ordinances by the Broward County Commission. The Planning Council has final authority over the approval, or recertification, of municipal land use plans and amendments. Under the Charter, the County has primary responsibility for land use planning. Municipal comprehensive plans must be in conformity with the BCLUP. Pursuant to section 11.01 of the Charter, County Ordinances relating to land use planning prevail over municipal ordinances. Flexibility Units/Reserve Units Broward County is a highly urbanized, fast-growing county located in the southeastern portion of Florida. The estimated 1998 population was 1,460,890, a 16.4 percent increase over the 1990 census. In addition to the County government, there are 29 municipalities in the County. In November 1977, Broward County first devised the concept of allowing flexibility to municipalities in land use planning by creating "flexibility units" (flex units) which could be used by municipalities in land use planning. The number of flex units is equal to the difference between the density permitted on the BCLUP map and the density permitted on the applicable municipal land use plan for any particular parcel of land. Flex units are unique to Broward County in the State of Florida. The entire County is divided into 126 flexibility zones. Each flexibility zone has a determined number of available flex units based on the difference in densities between the future BCLUP map and the municipal land use plan. Within each of the 126 flexibility zones, designated on the future BCLUP map, the appropriate municipality may rearrange and revise land uses and densities, within limits specified in the County Plan, without the necessity of an amendment to the County Plan. The total density within any particular flexibility zone cannot exceed the density on the future BCLUP map. The Administrative Rules Document contains rules and procedures regulating flexibility zones and units. Modifications to flexibility zones may be requested by the municipality, the County, or the Planning Council, subject to final approval by the Board of County Commissioners. Municipal plan amendments revising land uses by use of flex units within flexibility zones are subject only to recertification by the Planning Council. Without the use of flex units, the land use category for a particular piece of property on the BCLUP map can be amended through an amendment to the BCLUP. "Reserve units" are additional permitted dwelling units equal to 2 percent of the total number of dwelling units permitted in a flexibility zone by the future BCLUP map. Reserve units function similarly to flex units and may be allocated by a municipality to rearrange and revise densities within a flexibility zone. For the purpose of this Recommended Order, reserve units shall be treated as flex units. Hallandale contains flexibility zones 93 and 94. Review of the Operation of Flexibility Rules In 1996, in response to state requirements for periodic evaluations of county comprehensive plans, the planning council staff, including Henry Sniezek of the County planning staff, prepared the Broward County Land Use Plan "Flexibility Rules" Study. After many hours spent obtaining data and analyses, the staff recommended that flexibility rules include more consideration of compatibility with surrounding land uses and the impacts on public schools. The 1996 report concluded: (1) that flexibility rules generally continued to serve the purpose of allowing local governments to address local planning issues and market concerns; (2) that local governments have utilized the flexibility rules consistent with their intent; and (3) that flexibility rules should continue to be available for local government use. The issue which is the subject of this proceeding, as to whether flex units should continue to be authorized for land planning uses in areas east of the Intracoastal Waterway to increase density from 25 to 50 units per acre, was not specifically within the scope of the 1996 report. Coastal Densities An April 24, 1998, version of the County land uses plan map, which is apparently still in force, designated a number of parcels throughout Broward County, east of the Intracoastal Waterway on the Atlantic Ocean, as land use category "H," for high density dwellings of 50 units per gross acre. Under the Broward County land use regulations, gross acreage is calculated by including the property owned by the landowner and half of adjacent right-of-way. In County-designated "H" parcels, developments of 50 units per acre are permitted, without the need to allocate flex units to the parcels. The Hallandale Ordinance In 1998, Hallandale passed an Ordinance 1998-3, creating a new Residential High Density-2 Land Use Designation (HD-2), allowing developments up to 50 residential dwelling units per acre, but only by the allocation of available flex units. On June 1, 1999, the Mayor of Hallandale was notified, by letter, that the land use element, as amended to create the HD-2 category, was recertified by the Planning Council. The recertification process constitutes a determination that the municipal plan amendment substantially conforms to the County Plan. The DCA found Hallandale's HD-2 ordinance in compliance. The Regional Planning Council determines whether comprehensive plan amendments comply with the 1995 Strategic Regional Policy Plan. The Planning Council approved the City's HD-2 category as consistent with the Strategic Regional Policy Plan. The intent of the ordinance was to promote and attract redevelopment to Hallandale, particularly the beach area, where many buildings date from the 1960's and 1970's, and may be approaching the end of their useful lives. The City used the HD-2 for the redevelopment of a property called Riviera Beach, which consisted of a deteriorating motel, a restaurant, and offices. The City also used the category to promote the redevelopment of the Ocean Marine property site of another deteriorating motel with a yacht club on the Intracoastal Waterway, which is currently going through the approval process. The City's former Director of Growth Management, Lorenzo Aghemo, opined that with existing average density on the beach in the range of 86 to 89 units an acre, redevelopment up to only 25 dwelling units per acre is not economically advantageous. The Proposed Amendment The Amendment that is the subject of this proceeding began as a "housekeeping" amendment which was initially designed to establish a uniform cap of 50 units per acre for the use of flex units to be consistent throughout the County Plan. During the process of meetings and public hearings before the Planning Council and the County Commission, and in response to comments and suggestions from members and staff as well as comments from DCA, the Planning Council, the Broward County League of Cities and various municipal governments, the Amendment evolved as more particularly described below. The Amendment ultimately became a mechanism to further goals contained in a Governor's Commission report entitled "Eastward Ho!" which was published in July 1996 and discussed in more detail below. A primary focus of the Eastward Ho! report is the recommendation that development in Southeast Florida, including Broward County, should be redirected into a corridor of land that generally consisted of the land between CSX and Florida railroads. The precise parameters of the Eastward Ho! corridor are undefined and the corridor eventually was expanded beyond the lands between the railroads; however, it is agreed that this corridor contains many of the older municipal regions of the County west of the Intracoastal Waterway. In its adopted form, the portion of the County's challenged amendment PCT 99-2, adopted through Ordinance 1999- 26, implements several changes which encourage the redevelopment of the County's urban corridor, and redirects development away from the Coastal High Hazard Area (CHHA) as well as away from the environmentally sensitive western areas of the County. With respect to the use of flex units, the challenged Amendment establishes four areas ("Areas A-D") within the County. Each area is given its own designation regarding the use of flex units. Area A This area generally encompasses all land west of the Urban Infill Area line. It is treated differently from the other areas for planning purposes because of its environmentally sensitive lands. Included in this area are portions of the Florida Everglades, other wetlands and well fields. In recognition of the environmental features of this area, the Amendment restricts the use of flexibility units to a maximum of 25 units an acre and helps to minimize urban sprawl. Area B This area is defined as all land east of the Intracoastal Waterway. It lies entirely within the County’s CHHA, which includes the land and water eastward of the Atlantic Intracoastal Waterway to the Atlantic Ocean. CHHAs are areas that are prone to damage from flood and wind from a hurricane event. This vulnerability to hurricanes presents special planning issues which led the County to limit the use of flexibility units to a maximum of 25 units an acre. In order to better protect human life and property, the County not only places a limit on flexibility units in this area, but encourages development and redevelopment in other portions of the County outside the CHHA. Area C This area generally comprises all of the land east of the Urban Infill Area Line and West of the Intracoastal Waterway. It includes many of the County’s older cities, where there is the greatest need for redevelopment. This area generally includes the Eastwood Ho! corridor. In order to encourage redevelopment in this area, the County continues to allow local governments to use up to 50 flexibility units an acre. Area D This area contains pocket areas that lie west of the Urban Infill area. Although the Amendment restricts the use of flexibility units to a maximum of 25 units an acre in this area, no compatibility review is required. At this time, there are two areas with this designation. Both of these pocket areas lie close to the Urban Infill Area. Application to Hallandale Most of Hallandale lies within Area C. A small potion of the City consisting of the beach east of the Intracoastal Waterway is in Area B and also within the CHHA. Under the challenged Amendment the City is limited to a maximum allowable density, with the allocation of flex units, to 25 units per acre, because the area is east of the Intracoastal Waterway. For purposes of this proceeding, the objectionable effect of the challenged Amendment is that it prohibits the use of flex units to that small portion of Hallandale that is east of the Intracoastal Waterway to attain densities greater than 25 units per acre. Lorenzo Aghemo, formerly Hallandale's Director of Growth Management, testified that the County's challenged Amendment is inconsistent with the following elements of the County's Plan: Objective 8.03.00, on discouraging urban sprawl by directing development to areas with existing facilities and services; Goal 13.00.00, on maximizing intergovernmental coordination and cooperation; Policy 13.01.08, on the Planning Council's responsibility to ensure consistency, as compared to its decisions to approve 50 units and than a few months later 25 units per acre; Goal 17.00.00, directing growth to identified urban infill, in areas of existing infrastructure and services to promote redevelopment; Policy 17.02.02, on urban infill and redevelopment to promote economic development and increase housing opportunities. Mr. Aghemo testified that the County's Ordinance, limiting the flex units to 25 per acre is also inconsistent with the following statutes: Section 163.3177(11)(c) - on maximizing the use of existing facilities and services through redevelopment and urban infill development; Section 187.201(15)(a) and (b) - on directing development to areas which have, in place, land and water resources, fiscal abilities and service capacity; Section 187.201(16)(b)5. - on allowing local government flexibility to determine and address urban priorities. Henry Sniezek testified that the proposed Amendment viewed in its entirety, is consistent with the above-cited provisions. Evolution of the Proposed Amendment On January 15, 1999, the County Planning Council's Land Use/Traffic Ways Committee discussed, for the first time, an early version of a County amendment to limit the density allowed from the use of flex units. At that time, the staff recommended that flex units should result in densities no higher than 50 units per acres. As stated above, the maximum of 50 units an acre, recommended in 1999, was intended for "housekeeping" purposes to establish the same cap for flex units consistently referenced throughout the plan. Robert Daniels, the principal planner for the Regional Planning Council, first recommended that the coastal barrier island be excluded from certain flex unit allocations in a letter to Mr. Sniezek, on January 27, 1999. Mr. Daniels testified that his concern was based on the Strategic Regional Plan goal and policy of reducing densities on coastal barrier islands, the beaches and areas east of the Intracoastal Waterway. The Broward League of Cities Technical Advisory Committee, composed of planners from various municipalities in the County, also recommended to the County Commission that it attempt to direct growth to the area between the Everglades on environmentally sensitive west and the CHHA. That policy is included in the County's "Eastward Ho" voluntary initiative. The Broward County urban infill area has a western boundary that coincides with the western boundary of the challenged amendment but extends east to the Atlantic Ocean. The Amendment, as adopted, ultimately excluded the area east of the Intracoastal Waterway within the urban infill area, as designated on the County land use map, from the maximum flex unit uses without County Commission approved. Eastward Ho! "Eastward Ho! Revitalizing Southeast Florida’s Urban Core" is a 1996 planning initiative of the Governor’s Commission for a Sustainable South Florida. It was developed by the South Florida Regional Planning Council in conjunction with the Treasure Coast Regional Planning Council. Eastward Ho! promotes urban infill and redevelopment in order to revitalize older communities. Among its other goals is to direct development away from environmentally sensitive lands, prime agricultural areas, and water resources. The Eastward Ho! initiative attempts to capture some of the projected growth in the western and CHHA and redirect it to the urbanized areas. The boundaries for the Eastward Ho! initiative include portions of Palm Beach County, Broward County and Miami-Dade County. Its boundaries are not precisely defined and have evolved over time. The original study area encompassed the area between the Florida East Coast Railroad and the CSX Railroad. As the program progressed, it became apparent that additional areas should be included. This larger Eastward Ho! area includes the lands lying east to US 1 and west to the Palmetto Expressway, the Florida Turnpike, State Road 7 and Military Trail. The Amendment Area C is generally compatible with the Eastward Ho! boundaries in Broward County. Area B does not lie within the Eastward Ho! boundaries. In its totality, the Amendment advances the purposes of Eastward Ho! by redirecting growth towards already urbanized areas and away from the environmentally sensitive areas in the western portion of the County and the CHHA. The Eastward Ho! initiative is advanced by the Amendment in that the proposed flexibility units scheme promotes the goals of directing some future development away from environmentally sensitive areas and the CHHA and redirects that future development to the urban infill areas. As the Amendment is consistent with, and furthers, Eastward Ho! goals, the contents of the document entitled "Eastward Ho! Revitalizing Southeast Florida's Urban Core" constitute relevant and appropriate data and analysis which supports the Amendment. In February 1999, a report was issued by Rutgers University, Center for Urban Policy Research in which the Eastward Ho! program is described and analyzed. This report was prepared for the Florida Department of Community Affairs and the U.S. Environmental Protection Agency. This document is entitled "Eastward Ho! Development Futures: Paths to More Efficient Growth in Southeast Florida." Included in this report are data and analysis contrasting projected Eastward Ho! and non-Eastward Ho! development patterns. In this report, it is concluded that directing some residential development growth from the hurricane hazard area and the western areas into the Eastward Ho! areas in the next twenty-five years will save 52,856 acres of prime farmland and 13,887 acres of fragile environmental lands. It is also expected that housing costs would drop approximately 2.3 percent. The report also concludes that by directing some future development over a 25-year period into the Eastward Ho! areas, the following savings in infrastructure costs can be gained: $1.54 billion dollars in local road costs, $62 million in state road costs, $157 million in water capital costs, and $135.6 in sewer capital costs. As the Amendment helps implement the goals of Eastward Ho!, it reasonably can be concluded that this report contains data and analysis that supports the Amendment. Local Mitigation Strategy Broward County’s emergency management staff has prepared a local mitigation strategy (LMS), which is the County’s plan to mitigate the effects of potential natural disasters, especially hurricanes. In this document, the County identifies the trend of conversions of living units in the coastal hurricane evacuation zone from seasonal to year-round use, increasing the number of residents in the coastal hurricane evacuation zones. This area is basically the same as the portion of the County described in the Amendment as Area B. In order to minimize the impact of natural disasters, the LMS recommends discouraging additional public expenditures to expand or improve infrastructure in the CHHA. The Amendment implements these recommendations by providing an incentive for directing some future growth away from the CHHA to Area C. Accordingly, the LMS constitutes data and analysis which supports the Amendment. Consistency with the Broward County Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions of the Broward County Comprehensive Plan: Objective 8.03.00, Goal 13; Policy 13.01.08, Goal 17; and Policy 17.02.02. Those provisions are part of the BCLUP. Objective 8.03.00 is entitled "EFFICIENT USE OF URBAN SERVICES" and reads: Discourage urban sprawl and encourage a separation of urban and rural uses by directing new development into areas where necessary regional and community facilities and services exist. The BCLUP does not define "urban sprawl." The Department of Community Affairs has a rule that defines "urban sprawl" as meaning: . . . urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low- intensity or low density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided.... Rule 9J-5.003(134), Florida Administrative Code. Rule 9J-5.006(5), Florida Administrative Code, provides guidance on how to ensure that plans and plan amendments are consistent with applicable requirements pertaining to the discouragement of urban sprawl. Rule 9J- 5.006(5)(a), Florida Administrative Code. The rule contains sections on primary indicators, land use evaluations, and development controls, each of which includes many factors to be carefully considered. The Amendment provides incentives for development in Area C, which is the older urban corridor of the County. Although some of it is also urban, Area B lies in the CHHA and the data and analysis support its disparate treatment. Taken as a whole, the Amendment has the effect of discouraging urban sprawl by promoting infill in older downtown areas (Area C) and directing development away from the environmentally sensitive areas (Areas A and B) and areas with inefficient land use patterns (Area A) such as the western areas of the County. Goal 13 and Policy 13.01.08 are located in the section of the plan entitled "INTERGOVERNMENTAL COORDINATION." They read as follows: GOAL 13.00.00 MAXIMIZE INTERGOVERNMENTAL COORDINATION AND COOPERATION AMONG STATE, REGIONAL, AND LOCAL GOVERNMENT ENTITIES. POLICY 13.01.08 The Broward County Planning Council shall continue to coordinate, cooperate and share information and services with all City and County planning offices and all local government agencies in order to ensure consistency and compatibility among the Broward County Land Use Plan and the other elements of the Broward County Comprehensive Plan, as well as municipal comprehensive plans. The Amendment does not modify the intergovernmental coordination provisions. While the Amendment restricts the effect of Hallendale Ordinance 1998-2 in that small portion of the City that is east of the Intracoastal Waterway, that restriction alone does not support a finding that the Amendment as a whole is inconsistent with Policy 13.01.08. Moreover, the County complied with the letter and spirit of Goal 13.00.00 and Policy 13.01.08 in developing and adopting this Amendment. It kept the municipalities informed of the Amendment by providing written drafts and coordinated with entities including the Broward County League of Cities, the South Florida Regional Planning Council, the Broward County Planning Council, and its technical advisory committee. Suggestions and comments from the South Florida Regional Planning Council and the League of Cities were a major influence in the ultimate version of the adopted Amendment. Goal 17.00.00 and Policy 17.02.02 are contained in the Plan’s section entitled "URBAN INFILL AREAS, URBAN REDEVELOPMENT AREAS AND DOWNTOWN REVITALIZATION." They read as follows: GOAL 17.00.00 DIRECT GROWTH TO IDENTIFIED URBAN INFILL, URBAN REDEVELOPMENT AND DOWNTOWN REVITALIZATION AREAS WITHIN BROWARD COUNTY IN ORDER TO DISCOURAGE URBAN SPRAWL, REDUCE DEVELOPMENT PRESSURES ON RURAL LANDS, MAXIMIZE THE USE OF EXISTING PUBLIC FACILITIES AND CENTRALIZE COMMERCIAL, GOVERNMENTAL, RETAIL, RESIDENTIAL AND CULTURAL ACTIVITIES. POLICY 17.02.02 Local land use plans should include policies to provide for adequate housing opportunities necessary to accommodate all segments of present and future residents of identified urban infill, urban redevelopment and downtown revitalization area(s). In its totality, the Amendment is not inconsistent with Goal 17.00.00 and may further it. By limiting development in the CHHA and the western portions of the County, the Amendment effectively encourages significant future growth to the urban infill areas and older downtown areas. The area encouraged for growth under this goal and policy is consistent with Area C, and targeted for the densest development and redevelopment. The Amendment is not inconsistent with Policy 17.02.02. Area B as a Coastal area is not particularly economically suitable for affordable housing. By encouraging development away from the CHHA, the Amendment may promote a wider range of housing opportunities through redevelopment in the Eastward Ho! corridor. Moreover, the Amendment provides that applications of flex units for affordable housing, Regional Activity Centers and special residential facilities are exempt from the Amendment’s restrictions in specified situations should affordable housing units be developed in Area B. Even if the Amendment were construed to be inconsistent with any of the above-discussed plan provisions, there are several other portions of the Plan that the Amendment furthers by encouraging development away from the CHHA and the environmentally sensitive areas in the western portion of the County. Those provisions include Objective 9.03.00, which requires developing and implementing land use controls to protect and enhance the County's beaches, rivers, and marine resources, and Policy 9.05.09, which requires considering the impact land use plan amendments have on wetland resources and minimizing those impacts to the maximum extent practicable. Objective 9.07.00 reads: Protect identified floodplains and areas subject to seasonal or periodic flooding. The Amendment advances this objective by limiting development in the CHHA (Area B), which is subject to storm surge, as well as limiting development in the western portion of the County (Area A), which has many flood-prone areas. Consistency with Section 163.3177(11)(c) The City alleges that the Amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which reads: It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization. To the extent this statute is a substantive compliance criteria, the Amendment is consistent with this statute. By promoting development in Area C, the Amendment will help achieve the goal of maximizing existing facilities through redevelopment, urban infill and urban revitalization. Consistency with the South Florida Regional Policy Plan The Strategic Regional Policy Plan for South Florida (SFRPP) is the regional policy plan adopted by the South Florida Regional Planning Council. It is adopted by reference in Rule 29J-2.009, Florida Administrative Code. The Amendment is consistent with provisions in the SFRPP, particularly those related to land use, public facilities, natural resources, and emergency management. The Amendment is consistent with Strategic Regional Goal 2.1, which requires directing development and redevelopment to areas least exposed to coastal storm surges and where negative impacts on the environment are minimal. The Amendment is consistent with several of Goal 2.1's implementing policies, including Policies 2.1.2 (reducing allowable densities on barrier islands and in the Category 1 Hurricane Evacuation Area), 2.1.3 (restricting development, redevelopment, and public facility construction in the CHHA), and 2.1.4 (directing development away from environmentally sensitive lands). The Amendment also furthers Strategic Regional Goal 7.1 by directing future development away from the areas most vulnerable to storm surges. Viewed in its entirety, the Amendment is consistent with the SFRPP construed as a whole. Consistency with the State Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions in the State comprehensive plan: Sections 187.201(15)(a) and (b) and 187.201(16)(b)(5), Florida Statutes. Goal (15)(a) recognizes the importance of preserving natural resources and requires development to be directed into areas which can accommodate growth in an environmentally sensitive manner. Implementing Policies (b)1., 2., and 5. requires the encouragement of efficient development, the separation of urban and rural uses, and the consideration of impacts on natural resources and the potential for flooding in land use planning. As discussed in earlier findings, the Amendment is consistent with such directives. The Amendment furthers Goal (15)(a) and Policies (b) 1., 2., and 5. Policy (16)(b)(5) reads: Ensure that local governments have adequate flexibility to determine and address their urban priorities within the state urban policy. The Amendment coordinates the policy for prioritization of urban development. Development is promoted in areas away from the CHHA and environmentally sensitive lands in the west. This is accomplished through the use of a cap on flexibility units. Local governments may choose to utilize less than the full extent of their available flexibility units or use alternative mechanisms to achieve higher densities. The use of flexibility units is only one method for controlling densities. If a local government needs more density to address its planning goals than is allowed by the Amendment, it may request a Future Land Use Map amendment. Additionally, local governments may avoid the Amendment's limits by maximizing density by the use of affordable housing developments, Regional Activity Centers or special residential facilities. The Amendment is not inconsistent with Policy (16)(b)(5). The Amendment is consistent with the State Comprehensive Plan construed as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by Broward County in Ordinance No. 1999-26 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rule promulgated thereunder. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 12th day of June, 2003. COPIES FURNISHED: Mark Goldstein, Esquire City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Jose R. Gonzalez, Esquire Broward County Attorney's Office 115 South Andrews Avenue Governmental Center, Suite 423 Fort Lauderdale, Florida 33301 Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issues to be addressed are whether the Petition to establish the District meets the factors set forth in Section 190.005, Florida Statutes, and whether the hearing process has been conducted in accordance with the requirements of Section 190.005, Florida Statutes, and Florida Administrative Code Chapter 42-1.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Pioneer Community Development District (Petition). The local public hearing was for purposes of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.2
The Issue The issue is whether the Petition to Establish the Bexley Community Development District I (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2006),1 and Florida Administrative Code Rule Chapter 42-1. The purpose of the hearing was to gather information in anticipation of quasi- legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue At "issue" in this hearing was the Petition for Rulemaking to Establish a Uniform Community Development District, dated October 10, 2002 (Petition). The Petition, filed by Beach Road Development Company L.L.C., requested that the Florida Land and Water Adjudicatory Commission (FLWAC) adopt a rule to establish a state-chartered uniform community development district, to be called the Cocohatchee Community Development District, on certain property in Lee County, Florida. The hearing was for purposes of gathering information in anticipation of quasi- legislative rulemaking by FLWAC.
The Issue The issue in this case is whether the subject plan amendment, which changes the future land use designations of parcels owned by each of the Petitioners, is not in compliance for the reasons set forth in the petitions.
Findings Of Fact The Parties Each Petitioner submitted oral or written objections during the review and adoption proceedings culminating in the adoption of the plan amendment at issue. Petitioner Wilson owns about 2.5 acres on the north 1/ side of State Route 524 and east side of Westminster Drive. The Wilson parcel, which is vacant, contains about 300 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. Petitioner Tompkins owns about 3.5 acres on the north side of State Route 524 and west side of Westminster Drive. The Tompkins parcel, which is vacant, contains about 600 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. The Wilson and Tompkins parcels lie between State Route 524 and Cocoa North, which is a large residential subdivision. The existing land uses near the area, which is a growth center in Cocoa, are largely low density residential, and there remains considerable vacant land. There are no commercial uses within the Cocoa North subdivision. The only access to Cocoa North is by way of State Route 524, using Westminster Drive or one of two other roads. The nearest convenience store is about two-thirds of a mile east of Westminster Drive on State Route 524. An I-95 interchange lies about 1.8 miles to the west of Westminster Drive on State Route 524. The nearest property to the west designated Commercial is at the northwest corner of the Tenzel property, which is discussed below. The Commercial parcel on the Tenzel property is about one and one-quarter miles from Westminster Drive. Petitioner Messiah Church owns about 2.3 acres on the east side of U.S. Route 1 about 300 feet north of Michigan Avenue. Petitioner Fountain owns about 0.72 acre on the east side of U.S. 1 about 1200 feet north of the Messiah Church's property. The Messiah Church parcel contains a church. The Fountain parcel is vacant. The Messiah Church and Fountain parcels lie between U.S. Route 1 and a wide strip of existing low density residential uses bordered on the east by the Indian River. The narrower strip containing the Messiah Church and Fountain parcels is located in an underutilized area characterized by a mix of existing commercial uses. For example, a flea market occupies the west side of U.S. Route 1 across from the Messiah Church parcel. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent the City of Cocoa (Cocoa) is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. History of Cocoa Comprehensive Plan Cocoa adopted its comprehensive plan and transmitted it to DCA on October 4, 1988. DCA issued a notice of intent to find the plan in compliance. A petition was filed challenging the determination of compliance and requesting a hearing under Section 163.3184(9), Florida Statutes. Following an administrative hearing, an order recommended that DCA forward the case to the Administration Commission for entry of a final order determining the plan not to be in compliance. The parties then negotiated a settlement agreement. Pursuant to the agreement, the Administration Commission entered a final order and later an amended final order determining the plan not to be in compliance and identifying the remedial amendments necessary to attain compliance. The designations challenged by Petitioners are part of a set of plan amendments consisting of the remedial amendments ordered by the Administration Commission, amendments required to settle a federal court action in which Cocoa was a defendant, and amendments having nothing to do with either legal proceeding. The challenged designations fall in the last category. The Future Land Use Map (FLUM) in the original plan adopted in 1988 designated as Commercial a strip of land containing the Wilson and Tompkins parcels. The entire strip runs 2700 feet along State Route 524, which is a two lane undivided minor arterial, and extends about 250 feet deep. The Wilson and Tompkins parcels constitute about 40% of the strip and are located at its extreme western end. State Route 524 operates at a level of service C and is projected to remain at this level of service though 1997. The FLUM designated as High Density Residential a strip of land containing the Messiah Church and Fountain parcels. The entire strip, which is generally quite shallow, runs about 3400 feet along U.S. Route 1, which is a four lane divided principal arterial. The Messiah Church and Fountain parcels constitute about 20% of the strip and are located in its northern half. U.S. Route 1 is operating at level of service D and is projected to be operating at level of service E by 1992 and level of service F by 1997. Transmittal and Adoption Process On October 30, 1989, the Planning and Zoning Board, which acts as the local land planning agency (LPA), conducted a public meeting at which it discussed at length new public participation procedures that it was considering adopting. Specific provisions were prepared following the meeting, circulated at the next LPA meeting on November 13, discussed, revised somewhat, and finally adopted. On November 21, 1989, the LPA met to discuss remedial amendments necessary to comply with the requirements of the Amended Final Order of the Administration Commission. Pursuant to a contract with Cocoa, the East Central Florida Regional Planning Council (Regional Planning Council) had prepared a draft set of amendments for review by the LPA. At the beginning of the November 21 meeting, the city attorney stated that the purpose of the meeting was to obtain information and comments from the public. He explained that he and city staff recommended that the LPA defer any formal action on the proposed amendments until their next scheduled meeting on November 27. A representative of the Regional Planning Council was in attendance to assist in the discussion. The proposed amendments drafted by the Regional Planning Council did not change the designations of the parcels owned by any of the Petitioners. In fact, according to the minutes, none of the four parcels nor either of the two strips containing the parcels was even mentioned at the November 21 meeting. Following a very short meeting on November 27 to discuss remedial amendments, the LPA next met on November 30. By this time, the Regional Planning Council had prepared a "final draft" of proposed remedial amendments. Following discussion, the LPA voted to recommend the proposed amendments to City Council. Toward the end of the meeting, the Vice Chairman moved that the strip containing the Messiah Church and Fountain parcels be designated Low Density Residential. The motion passed. At a regular meeting on November 28, the City Council adopted Resolution 89-37, which provides for public participation procedures in connection with the comprehensive planning process. The ordinance calls for advertising of transmittal and adoption hearings in accordance with applicable law, the encouragement of oral or written public comment, and responses from the City Council or its designee. At a special meeting on December 5, the City Council considered the proposed amendments that had been recommended by the LPA. At this meeting, the City Council voted to change the designations for both strips, including all of Petitioners' parcels to Low Density Residential. The vote on the strip containing the Messiah Church and Fountain parcels was unanimous. The vote on the strip containing the Wilson and Tompkins parcels was four to one. Neither DCA nor Cocoa staff originally suggested the new designations for Petitioners' parcels. The new designations were not prompted by any changes to the original data and analysis. It does not appear that the Regional Planning Council, which also assisted in the preparation of the original plan, proposed that the parcels originally be designated Commercial, but it does not appear that the Regional Planning Council made the suggestion for a change in designation. At a special meeting on December 11, the City Council considered the proposed amendments, including the new designations for Petitioners' parcels, as well as the amendments to settle the pending state and federal litigation. No one appeared on behalf of any of the Petitioners to object to the proposed designations. However, in response to the objections of an owner of other property on the south side of State Route 524, whose property was also proposed for redesignation as Low Density Residential, representatives of Cocoa explained that the redesignation on both sides of State Route 524 was based on Cocoa's recent experience with DCA on unrelated plan amendments involving what is known as the Tenzel property. The city attorney indicated that staff was concerned that the objections lodged by DCA to the plan amendments involving the Tenzel property, which Cocoa was at the same time annexing, could possibly be made against the Commercial designation along both sides of State Route 524. The city manager also mentioned his concern that the plan be internally consistent. The Tenzel property consists of 157 acres on the south side of State Route 524 about one mile west of Westminster Drive. Cocoa transmitted the proposed Tenzel amendments to DCA on March 13, 1989. The proposed amendments designated 60 acres, including its entire State Route 524 frontage, Commercial and the remainder Industrial. Cocoa was planning to annex the Tenzel property, which was at the time of the transmittal in unincorporated Brevard County. In its Objections, Recommendations, and Comments (ORC) dated July 6, 1989, DCA objected that, among other things, the proposed designation was inconsistent with Future Land Use Element (FLUE) Policy 1.2, which is to discourage new linear commercial development. Instead, DCA recommended that new commercial uses should be clustered. DCA also complained that the designation was not supported by data and analysis and the portion of the FLUM covering the Tenzel property did not depict natural resources. On September 6, 1989, Cocoa annexed the Tenzel property and amended its plan. The adopted plan amendments designated only 10 acres Commercial and the remaining 147 acres Residential. 2/ The property designated Commercial was limited to only about half of the available frontage and was restricted to the northwest corner, which is farthest from the Tompkins and Wilson parcels and closest to the I-95 interchange at State Route 524 to the west. The adoption package contained considerable data and analysis concerning the newly annexed property. DCA issued its notice of intent to find the plan amendment in compliance on October 25, 1989. Notwithstanding the Tenzel-related concerns expressed at the December 11 hearing of the City Council, an owner of about 2.5 acres of land on Westminster Drive near State Route 524 objected to the redesignation of his land from Commercial to Low Density Residential. He argued that the land was unsuitable for residential uses due to traffic and other factors. In response, the city manager stressed the possibility of conflict with the plan if strip commercial were "proposed." 3/ With one member changing his vote as to the strip containing the Wilson and Tompkins parcels, the City Council voted three to two to transmit to DCA the proposed amendments, including the new Low Density Residential designations for the two strips containing the four parcels of Petitioners. The sole issue concerning the advertisements for the transmittal hearings of December 5 and 11 is their failure to identify the Wilson and Tompkins parcels as the subject of proposed land use changes. The advertisement for the December 11 hearing states in bold, capital letters at the top: "Notice of Change of Land Use and Comprehensive Plan." Following a brief paragraph announcing the time and place, the first item to be discussed is: "Proposal to change the use of land within the areas shown on the map below." Immediately below this sentence is a map of the entire city. Beside the map in one block is the statement: "Landuse changes to the future landuse map." A second block below the first states: "Black shaded areas to low density residential." The shading covers the High Density Residential strip including the parcels owned by the Messiah Church and Fountain, but omits the Commercial strip including the parcels owned by Wilson and Tompkins. The map for the December 11 hearing was published on December 4. The change of designation for the Wilson and Tompkins parcels was first proposed at the City Council hearing the following day. By letter dated March 22, 1990, DCA transmitted its ORC on the proposed plan amendments. The ORC informed Cocoa that DCA had no objections, recommendations, or comments on the transmitted amendments. Following receipt of the ORC, the LPA met on May 2, 1990, to review staff's response. During the meeting, the LPA discussed the Wilson parcel with her attorney, who objected that the Commercial designation would render the property useless due to its shallow depth. The attorney pointed out that a residential designation was impractical at that location; to the east, on the north side of State Road 524, townhouses had remained unsold for a long time. A motion not to change the Commercial designation on the Wilson and Tompkins parcels, while changing the designation for the rest of the strip to Low Density Residential, was seconded and discussed. It failed by a vote of four to three. At this point, the city attorney suggested that condominiums already in the area would be incompatible with Low Density Residential. The discussion acknowledged the protests of surrounding homeowners to the Commercial designation. A motion, seconded, to designate the entire strip north of State Route 524 as High Density Residential failed by a four to three vote. This vote was immediately followed by a motion, seconded, to designate the entire strip north of State Route 524 as Medium Density Residential. This motion passed by a five to two vote. The same attorney also represented the Messiah Church at the LPA meeting. He stated that the church intended to sell the property and the new designation was disadvantageous to a sale. In the ensuing discussion, it was noted that central sewer had yet to reach this site. A motion, seconded, was made to designate the Messiah Church parcel High Density Residential. The motion failed by a five to two vote. A motion, seconded, to designate the entire strip along the east side of U.S. Route 1 Low Density Residential passed unanimously. At the conclusion of the meeting, the LPA voted to adopt the amendments, subject to changes made at the meeting, and send the package to the City Council. The City Council meeting of May 8 was announced by a large display newspaper advertisement, which was published on April 27. The advertisement contained a map shaded to indicate that the designation of the two strips in question was proposed to be changed to Low Density Residential. During the meeting, the city attorney discussed the redesignation of the strip along State Route 524 from Low Density Residential, as it was shown in the transmittal amendments, to Medium Density Residential, as had been recommended by the LPA at its May 2 meeting. An attorney representing Wilson and Tompkins argued in favor of the Commercial designation given the property in the original plan. The city manager responded that the property was reexamined as a result of Cocoa's recent experience with DCA on the Tenzel plan amendments. Trying to avoid the appearance of strip commercial zoning, staff favored the proposed recommendation. The city attorney likewise warned the City Council to consider as a matter of policy the concern of DCA to avoid urban sprawl and strip commercialism. Nearby residents were almost uniformly in favor of a residential designation. Wilson complained that she purchased the property after being told by Cocoa that she could use it for commercial purposes. She also argued that 15 units per acre would allow 30 homes, which would add to the congestion in the area. After everyone had a chance to speak, a motion, seconded, called for designating the Wilson and Tompkins parcels as Commercial with the remainder of the strip designated Medium Density Residential. The motion failed three votes to two. A motion, seconded, to accept the recommendation of the LPA passed three to two. After other parcels were discussed, the city attorney raised the redesignation as Low Density Residential of the High Density Residential strip along the east side of U.S. Route 1. The attorney representing Messiah Church asked that the City Council consider the church property separately because it was for sale and worth more in its present designation as High Density Residential. He argued that buffering provisions of the plan would be violated by a Low Density Residential designation. Concerning his property, Fountain agreed with the attorney's reasoning and informed the City Council that no home had been built along U. S. Route 1 from Sharpes to south Rockledge for over 30 years. Following discussion, during which the Mayor noted that the Regional Planning Council had recommended that the property be designated Low Density Residential, a motion, seconded, to leave the strip High Density Residential failed three votes to two. A motion, seconded, to approve the recommendation of the LPA passed by the same margin. At the conclusion of the meeting, the City Council approved on first reading the ordinance adopting the plan amendments. Following another display newspaper advertisement indicating proposed land use changes for the two strips, the City Council again met on May 22, 1990. A minister of the Messiah Church praised the City Council for its recent decisions and announced that the church had decided that to meet the needs of the community it would minister to persons whose needs were presently unmet, like transients, mentally retarded persons, handicapped persons, and residents of halfway houses. Church officials had decided that such a ministry could be carried out from the present location with the proposed designation, which nonetheless remained an example of bad planning in their opinion. Addressing the strip north of State Route 524, the attorney representing Wilson and Tompkins objected to the absence of representatives from the Regional Planning Council despite the fact that they had been responsible for drafting the plan amendments. The city attorney advised that the Regional Planning Council had originally recommended that these parcels be designated Low Density Residential, but the City Council, as it was then constituted, decided to change the designation to Commercial in the original plan. The city manager again justified the decision as to the Wilson and Tompkins parcels based on DCA's objections to the transmittal amendments for the Tenzel property. After discussion on the State Route 524 strip concluded, the attorney for Messiah Church objected to the proposed redesignation from High Density to Low Density Residential. Again protesting the absence of the Regional Planning Council planners, he asked for an explanation of this action. The city manager responded that staff's concerns involved compatibility with existing uses and recommendations of citizens in the area. The city attorney added that the central sewer lines ended south of the Messiah Church parcel. Various persons spoke on both sides of the issue. After discussion of other plan issues, the City Council adopted Ordinance 15-90, which includes the plan amendments that, among other things, redesignate the Commercial strip containing the Wilson and Tompkins parcels to Medium Density Residential and the High Density Residential strip containing the Messiah Church and Fountain parcels to Low Density Residential. The failure of the published map to depict the four parcels or the two strips undoubtedly accounts for the absence of the Petitioners from the second transmittal hearing. However, the arguments of similarly situated landowners were presented at the hearing. Moreover, five months passed between the transmittal and adoption hearings. Nothing in the record suggests than any Petitioner could have accomplished more in a few days before the second transmittal hearing that he, she, or it accomplished in the several months that passed before the adoption hearings. All Petitioners complain that the inadequacy of explanations received at the hearing for the redesignations deprived them of effective public participation. Generally, they received responses to their demands for explanations. Several reasons emerge from the record for the redesignation of Petitioners' parcels. As to the Wilson and Tompkins parcels, Cocoa staff officials expressed concerned about the appearance of strip commercial designations. This explanation is difficult to justify objectively because the Commercial designations probably could not have been challenged by DCA in the subject plan amendments. DCA's objections to the transmittal plan amendments on the Tenzel property were not relevant to the Commercial designations given these four parcels, especially if taken in isolation from the strips of which they were a part. It is of course possible that, given Cocoa's recent experience in federal and state review of its land use planning efforts, beleaguered staff and local officials chose to exercise an abundance of caution. As to the Messiah Church and Fountain parcels, Cocoa staff and officials expressed concern about the unavailability of central sewer. However, the concern, at least as voiced personally by the Mayor at the May 8 City Council hearing, was not so much for the protection of natural resources as for the protection of nearby homeowners from the expense of tying in to central sewer lines if they were extended through the High Density Residential strip. Transcript of May 8 hearing, pages 48-49. The Mayor's concern points to the most compelling explanation for the new designations for all four parcels. Each designation was driven by political pressure from residents, which, to some extent in this case at least, may be characterized in the more appealing terms of concerns about surrounding land use compatibility. The forces of neighborhood preservation confronted the forces of development and, in this encounter, the former prevailed by a bare majority of the City Council. The evidence fails to establish to the exclusion of fair debate that the above-described facts are not consistent with the applicable public participation criteria. Data and Analysis in Support of Designations Cocoa did not submit new data or analysis when it submitted the adopted plan amendments. However, data and analysis transmitted with the original plan, as well as the Tenzel amendments, bear on the new designations. More pertinent to the Wilson and Tompkins parcels, the data and analysis note: Neighborhood commercial uses of low density and intensity should be located within neighborhoods or central to several residential clusters. Such a locational strategy would produce the beneficial effects of reducing the time and distance to neighborhood commercial, making trips quicker, easier, and more economical. Background Analysis, FLUE, page 1-26. At the same time, the data and analysis predict significant traffic impacts on State Route 524 as the impact of new residential developments is felt. Background Analysis, Traffic Circulation Element, page 2-16. On the other hand, another locational recommendation in the data and analysis is for the central business district, which is south of all four parcels, to serve as "the community focal point providing a mixture of retail and services." Background Analysis, FLUE, page 1-26. Projecting a population increase of nearly 4000 persons from 1986 to 2000, the data and analysis report that there is generally enough land available for residential needs. Background Analysis, Housing Element, p. 3-15. The analysis concludes that County will need about 309 acres for residential development through 2000. Background Analysis, FLUE, page 1-26. Additional data and analysis accompanying the Tenzel plan amendments lower this amount to 130.6 acres, at least as to single family residential. Tenzel Data and Analysis, Part II. However, a corresponding increase in projected population probably should have accompanied the Tenzel plan amendments because they involved an annexation. Although the data and analysis provide little useful information concerning the amount of acreage designated, rather than zoned, residential, there is no evidence on which to base a conclusion that changing the designations of the State Route 524 strip from Commercial to Medium Density Residential and the U.S. Route 1 strip from High Density Residential to Low Density Residential defy the data and analysis regarding the need for residential land. The data and analysis project that 385 acres will need to be devoted to commercial uses by 2000. Background Analysis, FLUE, page 1-26. In 1987, about 276 acres were in commercial use. Table 1-2, Background Analysis, FLUE, page 1-6. Although the data and analysis do not indicate the number of vacant or developed acres designated Commercial under the plan, Tables 1-3 and 1-4 indicate that about 800 acres are zoned commercial. Background Analysis, FLUE, page 1-7 and 1-11. The acreage zoned commercial and acreage designated Commercial are probably about the same. Table 1-4 indicates that 170 acres zoned commercial are vacant and suitable for development. If Cocoa requires another 100+ acres for commercial uses in addition to the 276 acres already in commercial use, the designation of 800+ acres as Commercial is ample to meet this need. Thus, the removal of a Commercial designation from the 15-acre strip, of which the Wilson and Tompkins parcels are a part, does not defy the data and analysis. The fairest conclusion that can be drawn from the data and analysis is that Cocoa suffers no deficiency, in terms of projected needs in the year 2000, in land designated Commercial or in either of the relevant residential categories. Pertinent to the Messiah Church and Fountain parcels, the data and analysis indicate that the City's wastewater treatment facility was to be expanded in November, 1988. Background Analysis, Capital Improvements Element, page 9-11. The project was completed, and the wastewater facility has a considerable reserve capacity. Presently, the Messiah Church and Fountain parcels, and the surrounding area, are served by septic tanks. The data and analysis indicate, however, that the City is committed to a program of gradually extending central sewer services to areas within the city not currently served. Background Analysis, Wastewater Element, page 3-5. More recently, the Tenzel analysis states: "A policy of phasing out septic tanks has been in place in order to protect the environment." Tenzel data and analysis, Section IV, Wastewater. A rough estimate of the cost to extend sewer lines the necessary one- quarter mile to the area of the Messiah Church parcel is $500,000. Although it might be more feasible for the developer of a High Density Residential project to provide the funds to extend sewer lines, the feasibility is not clear given a project on a 2.3 acre parcel in an underutilized part of town. In any event, Cocoa has demonstrated a commitment to expanding the central sewer system, require connections, and finance the expansion by special assessments. The data and analysis would support either designation. The evidence thus does not establish to the exclusion of fair debate that the designations are not supported by the data and analysis. Consistency of Designations with Criteria of Land Use Suitability Analysis, Encouraging Redevelopment of Blighted Areas, and Discouraging Urban Sprawl For the four parcels, the land use suitability analysis accompanying the original plan supports the designations adopted in the plan amendments. This issue has been considered above with respect to the issue involving supporting data and analysis. Given the changes in designations from Commercial and High Density Residential to Medium and Low Density Residential, respectively, no additional land use analysis was required for the reasons set forth in the Conclusions of Law corresponding to the preceding section. The evidence fails to establish to the exclusion of fair debate that the designations are not supported by a land use suitability analysis. For the reasons set forth in the Conclusions of Law corresponding to this section, no findings are necessary to address the issue of the consistency of the plan amendment with the criteria of Chapter 163, Part II, and Chapter 9J- 5 concerning redevelopment of blighted areas and urban sprawl. Findings concerning urban sprawl in the context of internal consistency are in the following section. Although not alleged as a basis for a finding of internal inconsistency, the issue of redevelopment of blighted areas has been considered in the following section as well, for the reasons set forth in the corresponding Conclusions of Law. Consistency of Designations with Plan Provisions Encouraging Redevelopment of Blighted Areas and Discouraging Urban Sprawl FLUE Objective 1.1 is to adopt land development regulations to "discourage the proliferation of urban sprawl." Goal 1 of the Public Facilities Element is to provide public facilities in a manner that "protects investments in existing facilities and promotes orderly, compact urban growth, and discourages urban sprawl." Similarly, Public Facilities Element Objective 4.1.2 is to coordinate the provision of public facilities with the FLUE "to discourage urban sprawl and maximize the use of existing facilities." Other provisions relied upon by Petitioners to show internal inconsistency are Public Facilities Objective 4.2.5 and FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6. Public Facilities Objective 4.2.5 is to adopt land development regulations that prohibit the installation of additional septic tanks within the incorporated city limits will be discouraged except when it is determined that the use of a septic tank system is the most efficient, cost effective and environmentally compatible alternative. [sic] FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6 provide that land development regulations shall be based upon the following locational criteria: Provisions of new residential uses shall be adequately balanced with the availability of residential support services including community facilities, shopping, schools, parks and open space, and transportation services. The City will encourage infill development in areas of existing viable housing, provide for redevelopment in blighted areas or areas in transition, and encourage new housing development in appropriate areas where community services exist or are programmed to occur. Residential areas shall be buffered from major transportation arteries and from incompatible non-residential uses. Residential areas should be served by sidewalks and, where practical, bikeways with convenient access to recreation, shopping, and schools. FLUE Policy 1.1.2 Commercial Areas Paragraph 2 4/ provides: New commercial uses shall be discouraged from linear commercial development and shall be encouraged to develop in clusters, with coordinated parking facilities, and with frontage roads where practical. Resulting in most cases from ineffective or no land use planning, urban sprawl is the extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard development pattern in which land uses are not functionally related to each other. Common patterns of the premature land development characteristic of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non-urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non-urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between the existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Urban sprawl typically interferes with one or more of four general objectives of effective land use planning: 1) promotion of the efficient use of land in the development of new, and maintenance of existing, viable mixed-use communities; 2) protection of natural resources in rural, agricultural, or other undeveloped or sparsely developed areas; 3) protection of agricultural lands and uses in rural, agricultural, or other undeveloped or sparsely developed areas; and 4) promotion of the efficient provision to both urban and non-urban areas of public facilities and services, such as water, sewer, roads, schools, police, fire, drainage, and other infrastructure, whether provided by public or private entities. The long strip of Commercial along State Route 524 suggests the presence of commercial sprawl along a thoroughfare. By removing the Commercial designation, Cocoa eliminates this type of sprawl. On the other hand, with respect to the Wilson and Tompkins parcels, Cocoa North resembles another example of sprawl. The introduction of compatible neighborhood commercial uses would tend to mix the uses with an immediate impact of relieving some traffic on State Route 524, as residents could make small purchases at, say, a convenience store located at State Route 524 and Westminster Drive. However, the solution adopted by Cocoa for the Wilson and Tompkins parcels, although possibly not the only one available under the circumstances, is consistent with the provisions of the plan to discourage urban sprawl. When compared to the prospect of the entire strip remaining designated Commercial, Cocoa's solution represents an improvement in terms of urban containment. The reduction of density for the strip east of U.S. Route 1 has few evident sprawl implications. To the extent this action may focus more dense residential development in the central business district or elsewhere where central sewer is already provided, the new designation serves the objectives to discourage urban sprawl. In any event, the new designation is not inconsistent with the sprawl provisions of the plan. The puzzling septic tank policy is probably intended to read that septic tanks are prohibited except when the use of a septic tank is the most efficient, cost effective, and environmentally compatible solution. The new designation for the strip east of U.S. Route 1 is not inconsistent with this policy. Consequently, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with the provisions in the plan to discourage urban sprawl. FLUE Objective 1.3 is to eliminate "[e]xisting conditions of slum and blight . . . by the year of 2000." FLUE 1.1.2 Redevelopment Area Paragraph 1 designates the Redevelopment Area, which is depicted by map and excludes the two strips containing Petitioners' parcels, as an area of slum or blight pursuant to Chapter 163, Part II, Florida Statutes. Paragraph 3 adds that the City shall redevelop the central business district, which is within the Redevelopment Area, as a viable business district consistent with surrounding historic resources, residential neighborhoods, and natural resources. There is no evidence of blight as to the Wilson and Tompkins parcels, notwithstanding the marketing problems experienced in connection with the nearby townhouses. Concerning the Messiah Church and Fountain parcels, a haphazard collection of largely commercial uses, such as a flea market, have accumulated over the years along U.S. Route 1 in the vicinity of the two parcels. The immediate area appears not to be economically vibrant, but no evidence establishes that the area is blighted. Further, no evidence suggests that the area's economic fortunes would be enhanced if the strip were designated High Density Residential, notwithstanding the Messiah Church's intended use of the parcel if it is not given a High Density Residential designation. The evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with plan provisions to encourage the redevelopment of blighted areas. Consistency of Designations with Regional and State Plans Regional Plan Policy 51.12 states: The "infilling" of existing urban areas and the renovation of blighted areas shall be encouraged in areas where existing wastewater transmission and treatment capacity are available for allocation, or funding has been committed for the provision of sufficient capacity. Emphasis should be placed on encouraging development activities within the urban service area boundaries as identified in local government comprehensive plans. Techniques of encouragement include but are not limited to: Provision of public or private facilities and services in strict accordance with adopted growth management objectives and policies . . Providing incentives for restoration or rehabilitation of blighted areas with existing sewer service through various actions such as but not limited to rezoning to other uses or higher densities Strengthening and preserving existing residential areas through the planned provision of public services, zoning and other techniques. Regional Plan Policy 57.7 5/ specifies the "designation of . . . activity centers . . . as a means of planning appropriate and balanced land uses on a scale and at an intensity consistent with the availability of public facilities and services . . Regional Policy Plan 51.10 limits the use of septic tanks in areas where conditions are suitable for installation and effective operation, provided that central sewer system services are not available due to lack of available treatment capacity, accessible facilities, or other considerations . . .. The following minimum criteria and procedures shall be adhered to . . . where regional resources may be adversely affected: * * * 3. The decision to require phasing out of septic tank systems where centralized sewer systems are available should be based solely upon the availability of those centralized systems and not upon any other consideration of ground water hydrology and current performance levels of septic tanks. For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan. Section 187.201(18)(a), Florida Statutes (the State Plan) is for Florida to "protect the substantial investments in public facilities that already exist and . plan for and finance new facilities . . . in a timely, orderly, and efficient manner." Goal 16 of the State Plan is to direct development "to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner." The first three policies under Goal 16 are: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the liveability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. In addition to the above-cited provisions relied upon by Petitioners, Policy 3 of Goal 5 of the State Plan is to increase the supply of safe, affordable, sanitary housing for low- and moderate-income persons by, in part, "recycling older houses and redeveloping residential neighborhoods." For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of the four Petitioners. ENTERED this 8 day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of August, 1991.
The Issue The issue in this case is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Fiddler's Creek Community Development District.
Findings Of Fact Maurice Fox ("Developer" or "Respondent" hereafter) filed his original application for approval of a development of regional impact with the Palm Beach County Board of County Commissioners in April, 1974. An extensive application was filed. Personnel from the staff of the County's Planning, Building, and Zoning Department discussed the application with the Respondent and his representatives, and the staff's recommendations were presented to the Planning Commission and to the Board of County Commissioners. The Respondent made presentations to the South Florida Regional Planing Council, and to the Board of County Commissioners. The Board received input from the Respondent, from the South Florida Regional Planning Council, from its own staff, from the Florida Game and Fresh Water Fish Commission, and from the Flood Control District, which is now the South Florida Water Management District. Palm Beach County was, at that time, a member of the South Florida Regional Planning Council. The Council recommended that the Board of County Commissioners deny the application for development order, maintaining that the proposed development conflicted with the county land use plan, would stimulate excessive migration into the region, would cause an excessive burden upon transportation facilities, did not adequately provide for solid waste disposal, could have an adverse impact upon water quality in the region, and would eliminate a significant habitat for wildlife including several threatened or endangered species. The Game and Fresh Water Fish Commission opposed the proposed project because of its potentially adverse impact upon the wildlife habitat. The Flood Control District considered that the lake system proposed to be operated in conjunction with the development could be maintained in such a way as to negate adverse impacts upon water quality of the region, and did not oppose the project. The County's Planning, Building, and Zoning Department recommended that the development order be issued, and the County Planning Commission concurred. By resolution number R74-700, the County Commission approved the application for development order subject to three conditions on September 3, 1974. This proceeding ensued. During the pendency of this proceeding, Palm Beach County withdrew from membership in the South Florida Regional Planning Council. The County joined the Treasure Coast Regional Planning Council (TCRPC). Since it was granted status as an intervenor, TCRPC has been functioning as the appellant. The South Florida Council has withdrawn from the proceeding. TCRPC has contended that the Board of County Commissioners did not adequately consider the environmental consequences of the proposed development. This contention is not supported by the evidence. The Board of County Commissioners did not have before it all of the evidence that is now before the Florida Land and Water Adjudicatory Commission, but it did have adequate information from which it could assess the environmental impacts of the proposed development, and weigh these impacts against potential advantages and disadvantages of the development. Whether the County Commission made a correct assessment of the ecological consequences of the proposed development is an issue for this appeal. The thought processes by which members of the Commission made the determination are not issues in this proceeding. Maurice Fox acquired the property which is the subject of this proceeding, and which has come to be known as the Fox Property, in 1954. The Fox Property lies in Palm Beach County, and is bordered on the east by State Road 7 as it is presently constructed and as it is proposed for extension. The property will run three lineal miles along State Road 7 when State Road 7 is completed. Okeechobee Road runs through the southern section of the property. The property has roughly a rectangular configuration, and consists of 1705 net acres apart from the rights of way of Okeechobee Road and State Road 7. The proposed development is a retirement community. It would contain 10,004 living units with a population cap of 18,416 persons. Dwelling units would be dispersed in forty five residential pods, some bordering on a lake, others on a golf course. There would be single and mixed story clusters. The maximum rise would be four stories. Two golf courses are proposed for construction, along with a 406-acre lake for sailing, boating, and fishing. A fourteen mile bicycle path that would not cross any roads is proposed for construction around the lake. There would be tennis courts, and at least one swimming pool for each building pod. The main social club would be located on the lake. Each golf course would have a club house. There would be a total of 1028 acres of open space, with approximately fourteen acres preserved in a natural condition. Three church sites have been set aside, along with a four and one half acre civic center, which would include a fire station, security facility, and municipal services. A commercial facility on a twenty five and one half acre tract is planned, with smaller convenience centers located at each of the golf club houses. The most significant feature of the development is a proposed center for geriatric medicine, which would be located on the southeast corner of the property. The center would be owned by a non profit corporation, and would be operated for the public benefit. The Respondent proposes to donate the land for the center. The center would have the following facilities: (a) A medical clinic with group practices of physicians; (b) Emergency facilities and rehabilitation services as a part of the clinic; (c) A retirement hotel for physically or mentally disabled persons who do not require complete nursing care; (d) A nursing home, and facilities that would provide in home services designed to keep older persons in their homes; (e) A nursing school, or continuing education facility that would provide training for staff for the center, and for other facilities. The center would have a significant research function, allowing a group of older persons to be studied over a period of years. The development would be constructed in four essentially, equal phases. Phases for construction of the geriatrics center have not yet been detailed. Local and state licensing would be required in order to operate many of the proposed functions of the center, and planning for construction of the center would need to be coordinated on an on going basis with the development of the retirement community. No evidence was offered that would specifically compare the proposed retirement community with other such communities. It is apparent, however, that the proposed community would provide a desirable place to live. All residences would border either a lake or golf course, and good recreational facilities would be immediately accessible to all residents. The project has been designed in order to maintain open spaces, with as much as seventy five, percent of the area remaining open. The primary benefit that the development would offer is the proposed center for geriatric medicine. The center is a primary altruistic goal of the Developer. The Developer has consulted eminent experts about the proposed center, and the center could provide a means for conducting significant research into illnesses of the elderly, and as a facility for training persons to treat illnesses of the elderly. Florida has a particular need for such an institute, and none of the medical schools in the state presently provide it. Although much is known about the needs for medical care of the elderly, a broader treatment concept has not been adequately developed. Old people are constantly fearful of becoming dependent, and they dread loneliness and bereavement. They have anxiety about spending their last days in a nursing home. The proposed center would address these problems by recruiting sensitive health care personnel, and providing a total care program for residents of the proposed community. Elderly persons require a continuum of care. Institutionalization of older people should be deferred as long as possible. There is a need to develop health services that can be delivered directly to the home. When it becomes necessary to institutionalize older persons, the proposed geriatrics center would accomplish it in a facility near to where they have lived, and to where their friends continue to live. Persons too fragile to stay in their own homes could live in the proposed hotel, and maintain personal relationships and community activities. Such a center as is being proposed would not have to be constructed in connection with a housing project, but it would be helpful to do so. Study would be facilitated due to the ready availability of a group of appropriate persons. The research that could be conducted could provide vital information about diseases of the aged. Some evidence was offered that tends to show that the Respondent may have some difficulty in obtaining all of the pertinent licenses that he will require in order to operate all facets of the proposed center. The evidence does not establish that the center is an impractical goal, but that ongoing planning that accounts for needs of the entire region is necessary. The Developer's motivations are clearly good. He is in part motivated by his own experience in dealing with an aged mother. He is not interested in developing the retirement community unless the center for geriatric medicine can also be developed. With appropriate planning the facility can become a reality, and would be a significant benefit to Palm Beach County, the region, the State of Florida, and indeed to society as a whole. The Fox Property is presently undeveloped. Human activities have had an effect on the property, but the property remains in an essentially natural condition. The property has been diked on all four sides by persons other than the Respondent. These dikes effect the flow of water across the property. While the evidence does not conclusively reveal whether the property has become drier or wetter as a result of human activity surrounding it, the present state of the property leads to a finding that its condition has not changed drastically in many years. The property may now be wetter than it was at some given instant in the past, or it may be drier. What is apparent is that the property has consistently maintained a degree of wetness that would support submerged or emergent vegetation, and that it has provided habitat for wildlife that thrive in transitional areas. Expert witnesses, who testified at the hearing, agreed as to the present characteristics of the property, but their testimony conflicted sharply in characterizing the condition as wet or dry, or as high quality or low quality wildlife habitat. Ecologists have reached no unanimous consensus in defining the term "wetland". The most generally accepted definition has been proposed by the United States Fish and Wildlife Service of the United States Department of the Interior in a "Draft of Interim Classification of Wetlands and Aquatic Habitats in the United States." The definition is as follows: Wetland is land where an excess of water is the dominant factor determining the nature of soil development and the types of plant and animal communities living at the soil surface,. It spans a continuum of environ- ments where terrestrial and aquatic systems intergrade. For the purpose of this classification system, wetland is defined more specifically as land where the water table is at, near, or above the land surface long enough each year to promote the formation of hydric soils and to support the growth of hydrophytes, as long as other environmental conditions are favorable. Permanent flooded lands lying beyond the deep water boundary of wetlands are referred to as aquatic habitats. The definition is compatible with the definition developed by other entities including the United States Corps of Engineers. The definition is also compatible with the Florida Department of Environmental Regulation system of classifying areas as submerged, transitional, and upland. Transitional areas within the Department of Environmental Regulation criteria would be classified as wetlands under the Fish and Wildlife Service definition. Wetlands have commonly recognized ecological values. These values are applicable to all wetlands, varying in quantitative and qualitative degree. In order of importance these values are as follows: First, wetlands provide habitat for an enormous array of plant and animal species, which cannot survive without such a habitat. Many endangered and threatened species require wetland habitats. They have become endangered or threatened because their realm has been diminished. Second, wetlands serve to remove and store excesses of certain elements from the environment. As a result of agricultural activities and as a result of large scale usage of fossil fuels, nitrogen and sulfates have become generally excessive in the environment. Wetlands serve a filtering and storage function for these potential pollutants. Third, wetlands serve an important water quality function. In periods of heavy rainfall wetlands serve to store and slowly release waters. Wetland vegetation serves to filter excess nutrients, from rainfall and from runoff, especially phosphorus and nitrogen. Fourth, wetlands are extremely productive in biological terms. Wetland vegetation takes in nutrients, and causes a net production of oxygen in the process of respiration. On a global, and even on a local scale, wetlands can thus be very important to air quality. Fifth, wetlands have an important impact upon the climate. Stored water in wetland areas maintains a warmer climate in areas surrounding the wetland. Wetlands also serve to fuel rainfall in an area. These wetland attributes apply to all wetlands in varying degrees, and do not apply as profoundly to other ecosystems. In addition to these values, wetlands serve an important food producing function since they serve as breeding grounds for fish, have important esthetic and recreational value, and have research and educational importance. Preservation of wetland areas has become an important environmental concern because there has been a very large loss of wetland areas to development. It has been estimated that more than one third of all wetlands in the United States, and more than half of the wetlands in Florida have been drained. Utilizing the Fish and Wildlife Service definition, from 900 to 1400 acres of the 1705 acre Fox Property can be classified as wetland. Only approximately 60 acres of the tract is aquatic, in other words wet at all times. Other areas are, however, sufficiently dominated by an excess of water to fall within the Fish and Wildlife definition. The Fox Property is not without human influence. The dikes which surround the property have effected the flow of water. "All terrain vehicles" have crossed the area and left their tracks. In some locations this vehicle use has been sufficiently significant that trails have been identified. There has been considerable hunting in the area. Some trash has been dumped, particularly in the areas adjacent to Okeechobee Boulevard. Trees have been removed, and potholes left in their place. In the area south of Okeechobee Boulevard it is apparent that there was considerable agricultural usage in the past which has affected the land. It is also apparent that there has been burning, although not to the extent that the ecological viability of the area has been violated. Exotic pest plants have infiltrated portions of the property. Melaleuca is the most dramatic of these. In small areas of the property melaleuca has become the dominant vegetation. Over a period of time melaleuca will tend to dry out a wetland, but the process is a lengthy one, which may take centuries to complete. Large airplanes fly low over the property disturbing the area with loud noises. Despite these intrusions, the Fox Property is dominated primarily by natural as opposed to human caused conditions. Nine hundred to fourteen hundred acres of the Fox Property display high or moderate wetland values. The remainder of the property displays low wetland values. Some parts of the property display outstanding wetland values. The most significant wetland attribute displayed by the Fox Property is the wildlife habitat that it provides. The habitat on the property is quite varied, and that contributes to its importance for wildlife. Several species on the Florida Game and Fresh Water Fish Commission "Threatened Species List" were actually observed on the property. These are the American alligator, the Florida great white heron, the osprey, the southeastern kestrel, the audubon's caracara, and the Florida sandhill crane. Several species on the Florida Game and Fresh Water Fish Commission "Species of Special Concern List" were also observed. Wildlife on this list are considered to be not as threatened with extinction as those on the "Threatened Species List", but nonetheless of concern. Observed were the little blue heron, the great egret, the snowy egret, the white ibis, the Cooper's Hawk, and the roundtail muskrat. Several other species on these lists thrive in such habitats as the Fox Property, and potentially could be there. The Florida Endangered Species List promulgated by the Game and Fresh Water Fish Commission constitutes species, that are in eminent danger of becoming extinct. None of these species were actually observed on the Fox Property, but the Fox Property provides viable habitat for the wood stork, the Florida Everglade kite, the red cockaded woodpecker, the, Florida grasshopper sparrow, and, the Florida panther. The Everglade kite, the red cockaded woodpecker, and the Florida panther are also on the Federal Endangered Species List. It is because of loss of habitat that these species are of concern, or are threatened, or are endangered. The Fox Property lies adjacent to a wetland area known as the Loxahatchee Slough. This is a major north south surface water drainage basin in eastern Palm Beach, County. Surface water moves across the Slough to the north, feeding the Loxahatchee River, or to the south into what is known as Conservation Area One within the Loxahatchee Preserve. The Fox property is in effect the western boundary of the Slough. The Loxahatchee Slough is a wetlands ecosystem. The Slough, and the National Wildlife Refuge, which surrounds and encompasses it, amount to 145,635 acres. This is primarily wetland. There are other viable wetland areas in the vicinity of the Fox Property which encompass as much as 850,000 acres. The fact that extensive wetlands are near to the Fox Property does not, however, lessen the wetland values of the Fox Property. In fact, the adjoining wetlands augment the wetland values that can be ascribed to the Fox Property, especially in terms of the property's importance to endangered wildlife. The proposed development would include a lake with an area of more than 490 acres. The lake system would provide viable habitat for the Florida alligator, but not for the other species discussed above, except perhaps as an occasional feeding area. These species are becoming scarce because their available habitat is shrinking. They are reclusive, and do not flourish in human residential areas. If the proposed development is approved, the Fox Property will effectively be obliterated as a viable wildlife habitat for many species, including some whose existence is threatened. The proposed lake system would also not perform other important wetland functions to the extent that the Fox Property now does so. The TCRPC has contended that the proposed development would have an adverse impact upon water quality in the region. This contention has not been supported by the evidence. It is apparent that the lake system will not serve the water purifying function that the Fox Property as a viable wet land presently serves. It does appear from the evidence, however, that the lake system can be maintained in such a manner as to not cause an adverse impact upon water quality. One witness testified that the lake is likely to suffer from algal blooms in part because it would be overloaded with phosphorus. This testimony did not, however, consider the effect that the swale system proposed by the Developer will have in filtering phosphorus from runoff which will enter the lake system. The testimony reveals that artificial lakes in the South Florida area have frequently been plagued with poor water quality. It is apparent that if the proposed lake were not properly maintained, its water quality could seriously deteriorate. With proper management, however, good water quality could be maintained. The evidence presented respecting the impact of the proposed development in environmental terms related solely to the proposed development. Whether less ambitious developments could be undertaken on the property without damaging the wildlife habitat or the wetland values was not addressed, and would not have been relevant.
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
