The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue The issue in this case is whether the Walton County Comprehensive Plan (Plan) is in compliance with Chapter 163, Part II, Florida Statutes (the Act), the State Comprehensive Plan (Section 187.201, F.S.), the West Florida Comprehensive Regional Policy Plan, and Chapter 9J-5, Florida Administrative Code (F.A.C.).
Findings Of Fact 1. Rejected, not supported by the weight of the evidence. 2-4. Rejected, not supported by the weight of the evidence. 5. Rejected, argumentative. 6-7. Rejected, not supported by the weight of the evidence. 8. Rejected, argumentative and legal conclusion. 9-12. Rejected, not supported by the weight of the evidence. 13. Rejected, legal conclusion. 14-17. Rejected, not supported by the weight of the evidence and much of these proposed findings are argumentative legal conclusions. 18-21. Rejected, not supported by the weight of the evidence. Also many of these proposed findings are merely arguments of law. 22-36. Rejected, not supported by the weight of the evidence. Again, many of these proposed findings are argumentative and mere conclusions of law as opposed to statements of factual findings supported by the record of evidence admitted at hearing. Rejected, not supported by the weight of the evidence. Accepted. Rejected, argumentative. 40-42. Rejected, subordinate to Hearing Officer's findings. 43. Adopted by reference. 44-48. Rejected, argumentative, mere recitation of testimony. 49. Rejected, not supported by weight of evidence. 50-62. Rejected, not supported by weight of evidence, argumentative, and, again, counsel argues law as opposed to presenting facts. Rejected, argumentative. Rejected, argumentative. Rejected, the failure of the county to adopt a traffic circulation map simply renders moot any need for discussion of adequacy of maps in data and analysis. 66-67. Rejected, see statement for finding number 65 above. 68-69. Rejected, not supported by the weight of the evidence. 70-71. Rejected, argumentative. Rejected, not supported by the weight of the evidence. Rejected, conclusion of law. Rejected, conclusion of law. Rejected, conclusion of law. Rejected, not supported by the weight of the evidence. Counsel continues also to engage in legal argument as opposed to presenting findings of fact. 77-79. Rejected, subordinate to Hearing Officer's findings. Rejected, subordinate to Hearing Officer's finding of fact. Rejected, generally this finding consist of an argumentative conclusion of law. 82-83. Rejected, the weight of the evidence does not support findings that these policies comply with requirements of 9J5. 84-96. Rejected, the greater weight of the evidence does not support any finding that these objectives comply with requirements of 9J5. 97-118. Rejected, not supported by the greater weight of the evidence. COPIES FURNISHED: Douglas M. Cook, Director Florida Land and Water Adjudicatory Commission 311 Carlton Building Tallahassee, FL 32301 George Ralph Miller, Esquire County Attorney Post Office Box 687 DeFuniak Springs, FL 32433 Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 David J. Russ, Esq. Kenneth D. Goldberg, Esq. Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Fred H. Kent, Jr., Esquire Post Office Box 53075 Jacksonville, FL 32201-3075 Chris Cadenhead, Esquire Post Office Box 5354 Destin, FL 32540 Richard Grosso, Esquire 1000 Friends of Florida Post Office Box 5948 Tallahassee, FL 32314-5948
Recommendation Based on the foregoing, it is hereby recommended that the Administration Commission for enter a final order determining that the Walton County Comprehensive Plan is not in compliance. RECOMMENDED this 13th day of April, 1992, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1080GM The following constitutes my specific rulings in accordance with Section 120.59, Florida Statutes, on Findings of Fact submitted by the parties.
The Issue Whether an amendment to the St. Lucie County Comprehensive Plan which was adopted by ordinance number 92-029 has rendered the St. Lucie County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, St. Lucie County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenors, Brian Charboneau and Kathy Charboneau, are the owners of a parcel of real property located in the County, which is the subject of the comprehensive plan amendment that is the subject of this proceeding. The parties stipulated that the Intervenors have standing to participate in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the east by the Atlantic Ocean, on the west by Okeechobee County, on the north by Indian River County and on the south by Martin County. Geographically, the County consists of approximately 600 square miles, or approximately 384,000 acres. Approximately 513 square miles, or approximately 328,320 acres, of the County are unincorporated and subject to land use planning by the County. The significant man-made features of the County include Interstate 95, the Florida Turnpike, State Highway 70 and the Fort Pierce International Airport. The airport is operated by the County. There are two incorporated areas within the County: Fort Pierce and Port St. Lucie. The majority of urban development within the County is located within these municipalities and consists mainly of detached, single-family residential dwellings and multifamily units. The estimated permanent population projected in the Plan for the County in 1990 was approximately 151,700. Including seasonal population, the estimated population for the County for 1990 was approximately 182,400. The majority of the County's land area is used for citrus production. The majority of the agricultural land use in the County is located within the County's unincorporated area, to the west of Interstate 95 and the Florida Turnpike, which both run generally north and south through the County. As a result of recent cold weather in areas of Florida north of the County, citrus production in the County has increased in recent years by approximately 35,500 acres between 1978 and 1992. Major natural divisions of the County are the Atlantic Coastal Ridge (including barrier islands), the Eastern Valley and the Osceola Plain. Adoption of the County's Comprehensive Plan. On January 9, 1990, the County adopted a comprehensive plan pursuant to the Act (hereinafter referred to as the "Plan"). The Plan applies to, and governs growth within, the unincorporated area of the County. The Plan excludes areas within the municipalities of Fort Pierce and Port St. Lucie. (Unless otherwise specified, any further reference to the County constitutes a reference to only the unincorporated areas of the County subject to the Plan.) The Plan was based, in part, on an earlier comprehensive plan adopted by the County in 1975 pursuant to the former Local Government Comprehensive Planning Act. The goals, objectives and policies of the Plan and the Future Land Use Map of the Plan were adopted by the County by ordinance. Data and analysis submitted by the County to the Department with the Plan was not adopted by the County by ordinance. The Department reviewed the Plan and on March 21, 1990, filed a Statement of Intent to find the Plan not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. A notice of the Department's determination was published in a local newspaper. The Department determined that the Plan was not "in compliance", in part, because of a conclusion that the Plan allocated twice as much land area to residential land use categories as data concerning the expected population of the County for the year 2015 justified. The Department, therefore, concluded that the Plan was not based on data and analysis, and did not discourage the proliferation of urban sprawl. The County and the Department entered into settlement negotiations which resulted in the execution of a Stipulated Settlement Agreement in October of 1990 disposing of the Department's objections to the Plan. Pursuant to the agreement, the Department agreed that it would find the Plan "in compliance" if the County adopted certain remedial amendments to the Future Land Use Element of the Plan. The terms of the agreement were subsequently carried out. See DCA exhibit 4. The remedial amendments were adopted in part due to the Department's concern about the the proliferation of urban sprawl. This concern was addressed through the remedial amendments by adding certain development controls and requiring clustering of residential development on lands classified agricultural. The remedial amendments also included Policy 1.1.2.4 and Policy 1.1.2.5. Policy 1.1.2.4 is quoted, infra, in finding of fact 123. Policy 1.1.2.5 provides: Provide adequate buffering and/or setbacks between agriculture and non-agricultural uses to protect such agricultural uses from adverse impacts associated with enforcement of nonagricultural development or creation of nuisances by agricultural operations. DCA exhibit 4. The remedial amendments also include Objective 1.1.5 and related policies governing development within the Urban Service Area. The Future Land Use Element of the Plan. The Future Land Use Element and the Future Land Use Map of the Plan reflect a long-term planning period of twenty-five years, ending with the year 2015. In the Introduction of the Future Land Use Element of the Plan (DCA exhibit 1 and St. Lucie County exhibit 1), there is a general description of the Future Land Use Element: The Future Land Use Element has been divided into a series of sections which analyze the existing patterns of development within the community, portray future patterns of develop- ment and recognize unique or special areas within the community that should be considered in future land use determinations. Integral to the success of the Comprehensive Plan are the Goals, Objectives, and Policies which will be used to direct the location and intensity of development for the variety of uses necessary for a healthy and diversified community. Page 1-1, St. Lucie County exhibit 1. The Future Land Use Element of the Plan includes the following "major development philosophy": Over the years, the County has been requested to approve development proposals that would permit the encroachment of urban uses in areas previously used for agricultural purposes. Many of these areas are outside of what may be considered the communities existing urban form or pattern. As discussed later in this element, the cost of providing the necessary community services to these development sites is becoming an increasing community concern. . . . Page 1-6, St. Lucie County exhibit 1. The Future Land Use Element of the Plan goes on to recognize the importance of citrus production: The major use of land within the unincorporated areas of the County is agriculture. Well over 60 percent of the County is presently used for the production of citrus, cash crops or ranching activities. These agricultural activities account for St. Lucie County being ranked among the top citrus producers in the State of Florida, contributing substantially to the local and regional economy. Page 1-11, St. Lucie County exhibit 1. Sixteen general categories of future land use are identified and defined in the Future Land Use Element of the Plan: Agriculture: 5 and 2.5. Residential: Estate, Suburban, Urban, Medium, High. Residential/Conservation. Conservation-Public. Commercial. Industrial. Public Facilities. Transportation/Utilities. Historic. Mixed Use. Special District. The density of development for the residential categories established in the Plan are 1 unit per acre for Estate, 2 units per acre for Suburban, 5 units per acre for Urban, 9 units per acre for Medium and 15 units per acre for High. The density for residential use of the agriculture categories established in the Plan are 1 unit per 2.5 acres for Agriculture-2.5 and 1 unit per 5 acres for Agriculture-5. Population estimates contained in the Future Land Use Element of the Plan are based upon estimates of population of the University of Florida Bureau of Economic and Business Research. The Plan indicates that the County has determined that the University's "high" projections appear to reflect more accurate population projections for the County. The projections concerning population contained in the Future Land Use Element and in this Recommended Order are based upon those "high" projections. Based upon the Plan's data and analysis projections, it is estimated that the permanent population of the entire County was 135,715 in 1988 and 318,650 in 2015. With the seasonal population added, based largely on agriculture related increases in population, the population was estimated at 154,141 in 1988 and 382,380 in 2015. Thus, the estimated increase in the population for the entire County from 1988 to 2015 is 182,935 permanent residents and 219,522 permanent and seasonal residents. In the County alone, the permanent population is estimated to be 54,226 in 1988. For the year 2015, the estimated permanent population is 93,045. With the seasonal population added, the population for 1988 is estimated at 65,119 and 111,654 for the year 2015. Therefore, the estimated total increase in population for the year 2015 is 38,779 permanent residents and 46,535 permanent and seasonal residents. For the year 1988, the Future Land Use Element of the Plan includes an estimate that the existing acreage being used for residential purposes was 16,900 acres. The Plan's Housing Element includes an estimate of only 12,369 acres of residential land use in 1988. To determine projected residential land use needs for the year 2015, the Future Land Use Element provides the following: For the purpose of determining the future land use needs in the community, a ratio has been established which is based upon current (1988) development conditions. This ratio was determined by dividing the seasonal population of the County in 1988 by the estimated amount of land consumed by broad land use category type. . . . Page 1-22, St. Lucie County exhibit 1. Actually, the ratio was determined by dividing the permanent population of the County in 1988, and not the seasonal population, by the estimated amount of land being used for residential purposes. The ratio of population in 1988 to residential acreage use in 1988 results in an estimate of the historical, minimum amount of residential acreage used in the County per 1,000 residents. Thus, it is concluded in the Plan that 312 acres (16,900 acres in residential use in 1988 divided by 54,226 permanent residents in 1988), or .312 acres per person have been used historically for residential purposes. Based upon the estimate of land in residential use in 1988 contained in the Housing Element of the Plan, the ratio is .228 (12,369 acres in 1988/54,226 1988 population). Applying the historical ratio of permanent residents per acre of residential acreage of .312 to the projected seasonal population in the year 2015 of 111,654, the Future Land Use Element of the Plan estimates that the total residential acreage needed by the year 2015 will be 34,836 acres: 111,654 x .312 = 34,836. The estimated total residential acreage needed in the year 2015 based upon the estimated residential acreage in 1988 contained in the Plan's Housing Element is 25,457 acres: 111,654 x .228 = 25,457. If the historical ratio of permanent residents per acre of residential acreage of .312 is applied to the projected increase in permanent population by the year 2015 of 38,779, the additional residential acreage needed by the year 2015 will only be 12,099 acres. Based upon this analysis, there will be a need for a total of 28,999 acres of residential land for permanent residents by the year 2015 (16,900 1988 acres + 12,099 projected need). Using the Plan's Housing Element ratio of .228 and the projected increase in permanent population results in a conclusion that there will be a need for an additional 8,841 acres of residential land. Based upon the projected population growth in permanent and seasonal residents for the year 2015 (46,535 increase in seasonal population) and applying the Plan's historical ratio of residential acres per 1,000 people (.312), the projected additional acreage needed for residential use by the year 2015 is 14,518 acres. Based upon this analysis, there will be a need for a total of 31,418 acres of residential land for the seasonal population by the year 2015 (16,900 1988 acres + 14,518 projected need). Applying the Plan's historical ratio of residential acres per 1,000 people to determine projected additional residential acreage need and using the projection of acreage in residential use in 1988 contained in the Housing Element, there is a need for only 26,887 total acres of residential land (12,369 1988 acres + 14,518 projected need). In the Plan, the County applied the historical residential ratio of .312, which is based upon 1988 permanent population, to the total projected 2015 permanent and seasonal population of 111,535 and concluded that there is a need for a total of 34,836 acres for residential use in 2015. This amounts to a total of 17,936 additional acres (34,836 - 16,900). Based upon the calculations contained in findings of fact 33 through 37, the Plan's projection of additional residential acreage is incorrectly high. Whether the Plan's higher estimate of need is used does not, however, appreciably affect the following determinations. Therefore, for purposes of this Recommended Order, the Plan's incorrect estimate of additional residential acreage needed will be used. The Future Land Use Map of the Plan reflects the County's conclusion that there are approximately 70,989 acres of land in the County available for residential use, not including potential residential development of land designated for agricultural use of one dwelling per 2.5 acres or per 5 acres, and excluding land involved in three amendments to the Plan, including the subject amendment. The 70,989 acres includes acreage already in residential use in 1988 (16,900 acres) and vacant acreage available for residential use through the year 2015. It is estimated in the Plan that there are 2.34 people per dwelling unit in the County. The remedial amendments to the Plan the County agreed to adopt did not remove any of the 70,989 acres of land allocated on the Future Land Use Map for residential use, modify densities, or modify the agricultural classifications of the Future Land Use Map. The Plan designates a portion of the County as an Urban Service Area. The Urban Service Area is depicted on the Future Land Use Map of the Plan. The Urban Service Area is generally described, in pertinent part, as follows: . . . . This area represents the preferred regions for development at urban intensities. The area indicated is the most likely to have centralized water and wastewater services provided by either a municipal utility or a privately operated regional enterprise. The intent of the urban service area designation is to restrict the negative impacts of a sprawling low density development pattern and the fiscal burden that pattern of development has on the ability of the community to meet its service needs. The Urban Service Area is not designed to be a permanent or static limitation on growth. Rather, it is intended to indicate the areas of the County that can reasonably be expected to be provided with necessary community services during the fiscal planning periods of this plan [to 2015]. . . . . Page 1-40, St. Lucie County exhibit 1. The western boundary of the Urban Service Area runs generally north and south along the western boundary of Fort Pierce and Port St. Lucie. The eastern boundary is the Atlantic Ocean. Future Land Use Objective 1.1.4 and Policies 1.1.4.1 through 1.1.5.9 deal with the Urban Service Area. Objective 1.1.4 of the Future Land Use Objective provides: In coordination with the other elements of this plan, future development shall be directed to areas where the provision of urban and community services/facilities can be ensured. Page 1-59, St. Lucie County exhibit 1. In pertinent part, the Policies related to Objective 1.1.4 provide the following: Policy 1.1.4.1 Encourage the location of urban land use intensities, through the development of density bonus and incentive programs in the Land Development Regulations, to those areas that lie within the defined urban service boundary before encouraging/supporting the conversion of property in the agricultural and suburban areas to higher intensity urban uses, but still keeping all development authorizations in line with the adopted levels of service within this plan. Policy 1.1.4.2 Require that new development be designed and planned in a manner which does not place an unanticipated economic burden upon the ser- vices and facilities of St. Lucie County. Policy 1.1.4.3 Encourage the use of cluster housing and planned unit development techniques to conserve open space and environmentally sensitive areas, through the incorporation of the following into the County's Land Development Regulations: The establishment of minimum acreage requirements necessary to support a viable mixed use community providing sufficient design flexibility to allow innovation and creativity in all forms of planned unit developments; The establishment of minimum open space ratios of 30 percent or greater in all planned unit developments including within the PUD documents assurances on the part of the developer that such areas will remain as open space to protect existing native habitat, to provide for minimum setback needs from adjacent uses, and to provide active and passive recreational as well as visual amenities. The establishment of minimum open space standards; The establishment of provisions ensuring the long term preservation of remaining open spaces; The establishment of a mixed use district combining residential, commercial, recreational, educational, and other income producing uses providing significant functional and physical integration among uses; The establishment of minimum standards for the provision of on-site shopping, job opportunities and internal trip capture; and, The establishment of specific requirements to provide efficient, centralized infrastructure (potable water and sanitary sewer). Include specific restrictions on the use of septic tanks, individual wells, and package plants in planned unit developments. Policy 1.1.4.4 Provide for the calculation of gross residential density on lands that lie above the mean high water elevation. Provide for the ability to transfer/cluster of residential density from wetland and other sensitive or unique environmental habitats to upland areas on contiguous property. Pages, 1-59 through 1-62, St. Lucie County exhibit 1. The Plan indicates that the Urban Service Area is likely to have centralized water and wastewater services provided. There is no firm commitment in the Plan, however, to provide central water and sewer services for development within the Urban Service Area. Policy 1.1.5.1 of the Plan provides that urban development activities are restricted to the Urban Service Area. The Policy also provides that "urban development activities" include "any residential development activity in excess of two units to the gross acre . . ." for purposes of the Policy. The densities of Policy 1.1.5.1 for residential development are more dense than what is generally considered as an "urban density". The land located outside of the Urban Service Area is classified almost exclusively as Agriculture-2.5 or Agriculture-5. There are a few areas which abut the Urban Service Area boundary line which are classified for residential use, including a few small parcels which were in existence prior to adoption of the Plan. The Plan does not indicate the current or future existence of urban development within the Urban Service Area. A wide range of development densities and intensities are provided for in the Plan for the Urban Service Area. With regard to development in the Urban Service Area, the Plan provides, in part, the following: It is the position of St. Lucie County that in order to permit the mechanics of the free market system to operate openly, there must be a choice in where to locate future development. Offering the possibility of various development areas, when located within the defined urban service area, is not supportive of a pattern of urban sprawl. Page 1-24, St. Lucie County exhibit 1. Amendments to the Plan. Since the determination that the Plan was "in compliance", the Plan has been amended three times, including the subject amendment. One amendment amended the Future Land Use Map to redesignate the future land use of approximately 2.1 acres of land from Agriculture-2.5 to Residential Estate (hereinafter referred to as the "Furlong Amendment"). Another amendment amended the Future Land Use Map to redesignate the future land use of approximately 9.57 acres of land from Residential Urban to Commercial (hereinafter referred to as the "Hayes Amendment"). Finally, the subject amendment amends the Future Land Use Map to redesignate the future land use of approximately 164 acres of land owned by the Intervenors from Agriculture-2.5 to Residential Estate (hereinafter referred to as the "Charboneau Amendment"). The Charboneau Amendment. On September 22, 1992, the Board of County Commissioners of the County adopted Ordinance No. 92-029 approving the Charboneau Amendment. The Charboneau Amendment, as adopted by the County, is effective only if it is ultimately determined that the amendment is "in compliance". After review of the Charboneau Amendment, the Department determined that it was not "in compliance". This determination was reflected in a notice which the Department caused to be published and in the Department's Statement of Intent of November 11, 1992. The Charboneau Amendment modifies the future land use classification of the Charboneau Property from Agriculture-2.5 to Residential Estate. Agriculture-2.5 allows residential use of the property of no more than one unit per 2.5 acres. Residential Estate would allow residential development of the property of one unit per acre. The Charboneau Property and the Surrounding Area. The subject parcel consists of approximately 164 acres of land (hereinafter referred to as the "Charboneau Property"). The Charboneau Property is generally rectangular shaped with several parcels of land in the southern portion of the parcel which are not included in the Charboneau Amendment. Those "out parcels" retain their future land use designation of Agriculture-2.5 in the Plan and on the Future Land Use Map. The Charboneau Property represents approximately five one-hundredths of one percent of the 328,230 acres of unincorporated land in the County. The northeastern portion of the Charboneau Property consists of cleared land used for grazing a small number of cattle. The remainder of the property is not being actively used for agriculture or other purposes and is covered by pine flatwood and palmettos. The Charboneau Property is located in approximately the geographic center of the County. It is outside, but on the fringe, of the major development areas of the County. The Charboneau Property is bounded generally on the east by Gentile Road, a two-lane dirt road running north from State Road 70. State Road 70, also known as Okeechobee Boulevard, is located to the south of the Charboneau Property. State Road 70 is a major east-west arterial road. It connects the Florida Turnpike and Interstate 95 area, which are located within the Urban Service Area to the east of the Charboneau Property, with Fort Pierce. Access to the Charboneau Property is off Gentile Road. The Charboneau Property is located to the west and outside of the Urban Service Area designated by the Plan. Prior to the adoption of the Charboneau Amendment, the parcel of property generally contiguous to the eastern boundary of the Charboneau Property was also located outside the Urban Service Area. The boundary of the Urban Service Area had been located contiguous to the eastern boundary of the adjacent parcel. The adjacent parcel and the Charboneau Property are separated by Gentile Road. In conjunction with the adoption and transmittal to the Department of the Charboneau Amendment, the Board of County Commissioners of the County initiated, directed and ratified a relocation of the Urban Service Area boundary approximately 1,000 feet to the west. This placed the Urban Service Area boundary at Gentile Road. This modification in the Urban Service Area was consistent with the Plan, which allows a modification of the boundary of the Urban Service Area of up to 1,500 feet without plan amendment. As a consequence of the modification of the Urban Service Area, most of the eastern boundary of the Charboneau Property is contiguous to, but still outside, the Urban Service Area. On the northern boundary of the Charboneau Property is a canal. The canal is approximately thirty feet wide, although the width of the water in the canal is less. The canal is approximately six feet deep. To the north and northeast of the canal are citrus groves in active agricultural production. The property (hereinafter referred to as the "Coca- Cola Property"), is owned by Coca-Cola. The Coca-Cola Property is classified as Agriculture-2.5 in the Plan. Except for certain small pockets of property which border on the Charboneau Property which are described, infra, the property to the north, northwest and west of the Charboneau Property are used predominantly for citrus. Most of this property consists of large tracts of corporate-owned land. To the north of the Coca-Cola Property are also large tracts of property owned by government agencies. To the northeast of the Coca-Cola Property is a tract owned by the University of Florida which is used for citrus research. To the northwest of the Coca-Cola Property is a tract owned by the United States Department of Agriculture. The County also operates a livestock farm in the area. To the northwest of the Charboneau Property and to the west of the portion of the Coca-Cola Property abutting the northern boundary of the Charboneau Property is a parcel of property known as Fort Pierce Gardens. Fort Pierce Gardens is a residential subdivision which apparently was not subject to the requirements of the Plan because of its existence prior to adoption of the Plan. The future land use classification of Fort Pierce Gardens is Agriculture- 2.5. The lots in Fort Pierce Gardens range in size from one acre to five acres. There are a few houses already constructed and a few more houses under construction in Fort Pierce Gardens. Development of Fort Pierce Gardens is less than half complete. Adjacent to the western boundary of the Charboneau Property is a tract known as Pine Hollow Subdivision. Pine Hollow Subdivision is a residential subdivision which apparently was not subject to the requirements of the Plan because of its existence prior to adoption of the Plan. It is approximately the same size as the Charboneau Property. The future land use classification of the parcel is Agriculture-2.5. Pine Hollow Subdivision consists of 110 platted lots that are being developed in phases. The first phase consists of thirty lots which are still under development. A County maintained road has been constructed in phase one. Development of the other phases has not begun. The remaining portion of the tract has three rough-cut dirt roads. The subdivision is less complete than Fort Pierce Gardens. Lots in Pine Hollow Subdivision are slightly larger than one acre. Homes in the subdivision will use wells and septic tanks. To the west of Pine Hollow Subdivision and Fort Pierce Gardens is a large area of land used for citrus. These lands are designated Agriculture-2.5 and Agriculture-5. To the south and southwest of the Charboneau Property is a parcel of property with an airstrip which has been used by crop-dusting airplanes. The airstrip is oriented in a southeast-to-northwest direction. The airstrip and the parcel of land to the south of the Charboneau Property and north of State Road 70 is designated Agriculture-2.5 on the future land use map. The airstrip is not currently being used for crop-dusting aircraft. Improvements have recently been made to the airstrip, however, which evidence an intent to use the airstrip in the future for crop dusting activities. Hearsay evidence corroborates this finding. The land to the south of the Charboneau Property and south of State Road 70 is in use for citrus production. The parcel between the Charboneau Property and State Road 70 is named Walsh Farms. The property to the south and southeast of State Road 70, while currently used for citrus production, is designated Residential Suburban on the Future Land Use Map, allowing development of two dwelling units per acre. This property is, however, located inside the Urban Service Area. To the east of Gentile Road is a parcel of property approximately the same size, north to south, and about half the size, east to west, as the Charboneau Property. This parcel has been developed as what was characterized as rural ranchette. There are approximately eighteen large lots of four to five acres up to ten to twenty acres. The lots in the parcel (hereinafter referred to as the "Ranchette Property"), have single-family homes constructed on them and the lots also have some citrus and horses. The evidence, however, failed to prove that the Ranchette Property was being used for commercial agricultural purposes. The parcel is designated Agriculture-2.5 on the Future Land Use Map. One parcel of approximately 2.5 acres located within the Ranchette Property was the subject of the Furlong Amendment. To the immediate east of the Ranchette Property, bounded on the south by State Road 70 and on the east, in part, by the Florida Turnpike, is an area designated as Residential Suburban on the Future Land Use Map. The area, which lies within the Urban Service Area, is largely undeveloped at this time except for a development known as Hidden Pines. Hidden Pines is a vested subdivision. Hidden Pines consists of lots of approximately one acre. The homes on these lots are served by wells and septic tanks. The subdivision is nearly completely built-out. Approximately 1.3 miles to the east of the Charboneau Property is the center of an area immediately to the north of where the Florida Turnpike and Interstate 95 cross. From this point, the Florida Turnpike travels to the northwest, and closest to the Charboneau Property, from the crossing with Interstate 95. Interstate 95 travels to the northeast, and furthermost from the Charboneau Property, from the crossing. Immediately to the north of the crossing State Road 70 intersects the Florida Turnpike and Interstate 95 in a generally east-west direction. The western boundary of this area is approximately two-thirds of a mile from the southeast corner of the Charboneau Property. There is an interchange of the Florida Turnpike immediately to the north of the crossing and just to the south of State Road 70. There is also an interchange of Interstate 95 to the north of the crossing at State Road 70. State Road 70 becomes a six-lane arterial road to the east of the Florida Turnpike. There are no level of service deficiencies on this portion of State Road 70. The area within and immediately outside the area north of the crossing, west of Interstate 95 and east of the Florida Turnpike, is designated as the Okeechobee Road/I-95 Mixed Use Activity Area. The area may be used for varied, compatible commercial uses and residential use up to fifteen dwelling units per acre. The Mixed Use Activity Area is currently being developed. There are hotels, motels, gas stations, restaurants and an outlet mall already in existence in the area. Another outlet mall is being constructed. Reynolds Industrial Park, consisting of approximately 200 acres, is being developed. To the northeast of the Charboneau Property and the Coca-Cola Property to the east of Gentile Road is an area designated Residential Estate. This area is within the Urban Service Area and currently is undeveloped. Part of the property is used for citrus production. In summary, the area to the west of the Urban Service Area, including the Charboneau Property, is designated for agricultural uses except for Fort Pierce Gardens and Pine Hollow Subdivision. Fort Pierce Gardens and Pine Hollow Subdivision are isolated islands of development within an area actively used for agriculture purposes. Insufficient Data and Analysis to Justify an Increase in Residential Acreage by the Designation of the Charboneau Property As Residential Estate. In the Department's Statement of Intent, it was concluded that the Charboneau Amendment is not "in compliance" based upon the lack of data and analysis to support the conversion of the Charboneau Property from Agriculture- 2.5 to Residential Estate with a designated density of one dwelling per acre. Currently, the Agriculture-2.5 classification of the Plan allows one dwelling unit per 2.5 acres, or a total of approximately 65 residential units on the Charboneau Property. The Plan, however, requires that any non-agricultural development of over twenty units within an Agriculture-2.5 classification must maintain open space of at least 80 percent of the project site in order to retain some viable agricultural use of the property. Residential Estate does not require clustering of units or open space. A total of approximately 163 residential units, one per acre with no open space, or a maximum of an additional 98 residential units can be constructed on the Charboneau Property if the Charboneau Amendment is approved. When the Charboneau Amendment was submitted to the Department for review, the County failed to provide any data or analysis in support of a potential increase in residential units of 98 units or the change in classification of the appropriate use of the Charboneau Property from agricultural to residential. For example, no analysis of the number of acres in the County which are available for development at one unit per acre was performed by the County. The data and analysis of the Plan and, in particular, the Future Land Use Element and the Future Land Use Map, allocate a total of 54,089 acres for new residential development in the County through the year 2015 to accommodate the need for residential property for projected increases in population (70,989 total acres available - 16,900 acres in use in 1988). If the acreage used for residential purposes in 1988 evidenced by the Housing Element is used, the Plan allocates a total of 58,620 acres for new residential development (70,989 total acres available - 12,369 acres in use in 1988). Based upon the Plan, there is a need for only 17,936 additional acres of residential property to accommodate projected population increases through the year 2015. See finding of fact 38. With 54,089 acres available for residential development through the year 2015 pursuant to the Plan and a need for only 17,936 additional acres, there are 3.01 times the number of acres of land designated pursuant to the Plan to accommodate need projected under the Plan. If the Housing Element historical ratio of use is used, there are only 13,088 acres of residential property needed to accommodate projected population increases through the year 2015. With 58,620 acres available for residential development through the year 2015 pursuant to the Plan and a need for only 13,088 additional acres, there are 4.47 times the number of acres of land designated pursuant to the Plan to accommodate need projected under the Plan. Applying the historical ratio of residential use to only the projected additional permanent population indicates a need for an additional 12,099 acres for residential use by the year 2015. Finding of fact 35. This projection represents 4.47 times the number of acres needed for projected new residential growth based upon existing ratios of residential land use (54,089 projected acres/12,099 projected need). Applying the historical ratio of residential use based upon the Housing Element of the Plan to only the projected additional permanent population indicates a need for an additional 8,841 acres for residential uses by the year 2015. Finding of Fact 35. This projection represents 6.63 times the number of acres needed for projected new residential growth based upon existing ratios of residential land use (58,620 projected acres/8,841 projected need). Although approved by the Department, the evidence in this case proved that the Plan contains a designation of sufficient land in the County through the year 2015 to more than adequately meet the reasonably anticipated need for residential property. In fact, the Plan over-allocates land well in excess of any reasonable expectation of the amount of property needed to meet such needs. Even based upon the Plan's projections, the County has allocated more than 3 times the land needed to meet the County's own projections for the need for residential land for the year 2015. While the existing provisions of the Plan are not subject to review, when asked to consider an amendment providing for an increase in residential property, the existence of excessive residential property should not be ignored. In this case, to ignore the realities of the excessive allocation of land for residential purposes in the County contained in the Plan and approve the classification of additional property as residential, would simply exacerbate an already existing excessive allocation. The conclusion that there is excessive land available for residential purposes already contained in the Plan is supported by the population per unit in the County of 2.34. If it is assumed that the 54,089 acres of land available for residential development in the County are developed at a low density of one unit per acre, there will be adequate residential land available for an additional 126,568 people: 54,089 acres, or 54,089 units, x 2.34 people per unit = 126,568 people. Based upon a projected permanent and seasonal population increase by the year 2015 of 46,535 people, there is available for residential use 2.71 times the acreage available to meet future residential needs. In light of the fact that residential property may be developed at much higher densities pursuant to the Plan, assuming development of one unit per acre is conservative, and the number of people that may be accommodated is much higher than 126,568 people. Although not reflected in the Plan, there has been a removal of some property classified as residential property from residential use since the adoption of the Plan. The County has acquired 94 single-family homes on 100 acres designated for Residential Estate use. The 100 acres are located to the east of the Ft. Pierce International Airport and were acquired for noise abatement purposes. The homes on the property have been demolished. An additional 90 homes on land classified Residential Urban will also be acquired and demolished. The State of Florida, through the Conservation and Recreation Lands Program, Chapter 253, Florida Statutes, has also acquired property known as the Avalon tract. The property is located on Hutchinson Island, in the northeast corner of the County. This property had been designated Residential Urban and could have contained approximately 450 units. Even with the removal of the property near the airport and the Avalon tract from the residential property inventory, the Plan contains an excessive allocation of property for residential needs through the year 2015. Based upon the foregoing, data and analysis has not been submitted by the County to justify an increase in residential property or property which may be developed at an increased density. There is already an over-allocation of property for residential land use and, even with the reductions of property near the airport and the Avalon tract, the addition of the Charboneau Property will only result in a Plan with greater over-allocation of land for residential purposes or increased densities. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, and Rule 9J- 5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The ill effects of urban sprawl include inequitable distribution of the costs of development and of providing services, inefficient use of land, unnecessary destruction of natural resources, loss of agricultural lands and increased commuting costs and the resulting pollution. In November 1989, the Department published a Technical Memorandum which describes the Department's policy concerning the definition of "urban sprawl". The Department's policy has been further refined and is reflected in proposed amendments to Chapter 9J-5, Florida Administrative Code. In particular, proposed Rule 9J-5.003(140) and 9J-5.006(6), Florida Administrative Code, are consistent with, and represent, the Department's policy concerning urban sprawl. The Department's policy concerning the definition of "urban sprawl", as set out in the proposed rules and as contained in the November 1989 Technical Memorandum, is consistent with the definition of "urban sprawl" most commonly employed by professional planners. The Department's proposed rules concerning urban sprawl do not have the effect of law. They have not yet been finally adopted. The proposed rules have not been relied upon, however, by the Department or the undersigned as "law" in this case. The proposed rules concerning urban sprawl have only been relied on as an expression of the Department's policy. The Department's policy concerning urban sprawl, as evidenced in the November 1989 Technical Memorandum, and as modified by the Department's proposed rules, is reasonable. The Department's definition of "urban sprawl" contained in the November 1989 Technical Memorandum is: . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development. The Department's definition of "urban sprawl" as evidenced by the proposed rules is as follows: (140) "Urban sprawl" means urban development or uses which are located in rural areas or areas of interspersed rural and generally low- intensity urban uses, and which are characterized by: The premature or poorly planned conversion of rural land to other uses; or The creation of areas of urban develop- ment or uses which are not functionally related to adjacent land uses; or The creation of areas of urban develop- ment or uses which fail to maximize the use of existing public facilities and the use of areas within which public services are being provided. Urban sprawl typically manifests itself in one or more of the following patters: (1) leapfrog or scattered development; (2) ribbon or strip commercial or other development; and (3) large expanses of predominantly low intensity and single-use development. Page 21, DCA exhibit 18. There are several indicators as to when a plan amendment does not discourage the proliferation of urban sprawl. The indicators, which are memorialized in the Department's proposed amendment to Rule 9J-5.006(6)(g), Florida Administrative Code, are whether a plan amendment: Promotes or allows substantial areas of the jurisdiction to develop as low intensity or single use developments in excess of demonstrated need. Promotes or allows significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are suitable for development but can be expected to remain undeveloped for the balance of the planing period. Promotes or allows urban development to occur in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments but which are bordered on either side by rural land uses, typically following highways or surface water shorelines such as rivers, lakes and coastal waters. Fails to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, endangered or threatened species habitat or habitat of species of special concern, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails to protect agricultural areas and activities, including silviculture. This includes active agricultural and silvicultural activities as well as passive agricultural activities and dormant unique and prime farm- lands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Increases disproportionately the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, storm- water management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation bet- ween rural and urban uses. Fails to promote and support infill development and the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in loss of significant amounts of functional open space. Pages 38-40, DCA exhibit 18 Pursuant to the settlement agreement between the County and the Department which led to the determination that the Plan was in compliance, objectives and polices were added by the County to the Plan to insure that the Plan discouraged the proliferation of urban sprawl. The Plan, by directing that development primarily take place within the Urban Service Area, evidences an intent on the part of the County to discourage urban sprawl. See page 1-40 of St. Lucie County exhibit 1 and finding of fact 43. Applying the indicators of urban sprawl to the Charboneau Amendment leads to the conclusion that the Charboneau Amendment does not discourage urban sprawl: The Charboneau Amendment allows the development of 164 acres of land as a low-density, single-use development of one dwelling unit per acre despite the lack of need for any additional residential development in the County. It allows urban development in rural areas at a significant distance from existing urban areas while leapfrogging over less dense and undeveloped land within the Urban Service Area more suitable for such development. It allows urban development in an area that is primarily used for agricultural purposes and, consequently, fails to protect agricultural areas. It fails to maximize the use of existing or future public facilities and services by allowing urban development outside of the Urban Service Area. At some time in the future, the residents of the Charboneau Property can reasonably be expected to expect public facilities and services. It will increase disproportionately the costs in time, money and energy of providing and maintaining facilities and services because the Charboneau Property is located outside the Urban Service Area. It fails to provide a clear separation between rural and urban uses. It fails to promote and support infill development and redevelopment. The Charboneau Amendment does not, by itself, create urban sprawl. No development of the Charboneau Property will occur simply because the Charboneau Amendment is found to be "in compliance" until development orders are issued by the County. These facts do not, however, support the suggestion that the Plan will not fail to discourage urban sprawl as a result of the Charboneau Amendment. The Charboneau Amendment, even though contrary to Objective 1.1.2 and the Policies thereunder which discourage urban sprawl, if found in compliance, will cause the Plan to contain provisions which not only fail to discourage urban sprawl. It will cause the Plan to include provisions which encourage urban sprawl. Inconsistency with Objective 1.1.2 of the Plan. Rule 9J-5.005(5), Florida Administrative Code, requires that comprehensive plan elements be consistent with each other and that future conditions maps reflect the goals, objectives and policies of the plan elements. The Department has alleged, and proved, that the Charboneau Amendment is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 of the Future Land Use Element of the Plan and, therefore, creates an inconsistency within the Future Land Use element. Objective 1.1.2 of the Plan provides the following: Provide in the land development regulations provisions for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban service boundary and promote retention of agricultural activities, preserve natural resources and maintain native vegetative habitats. Policy 1.1.2.4 of the Plan provides the following: The County shall include in its land development regulations a site assessment process to evaluate the potential conversion of existing or designated agricultural land uses to non- agricultural land uses in a rational and orderly manner. such provision shall require as a condition to such conversion that the Board of County Commissioners affirmatively find that the proposed non-agricultural use: is compatible with adjacent land uses; maintains the viability of continued agricultural uses on adjacent lands; contains soils suitable for urban use as defined by the St. Lucie County soil survey; is suitable with existing site-specific land characteristics; is consistent with comprehensive develop- ment plans; will have available the necessary infrastructure concurrent with the anticipated demands for development; and, will avoid the extension of the urban services boundary to create any enclaves, pockets, or finger areas in serpentine patterns. Policy 1.1.2.4 was added to the Plan as part of the settlement entered into between the Department and the County during the review of the Plan. Based upon data contained in the Plan, there were approximately 211,428 acres out of a total of 330,402.7 acres in the County in 1988 devoted to agricultural use. This amounts to approximately 63.9 percent agricultural use. The area outside the Urban Service Area is: . . . recognized for first being appropriate for the production of citrus, cash crops, or ranching activities. . . . Based upon the entire area to the west of the Urban Service Area, including the Charboneau Property and the property surrounding the Charboneau Property, the conversion of the Charboneau Property from Agriculture-2.5 to Residential Estate would create an incompatible use of the Charboneau property. This conclusion is reinforced by consideration of the general impact of the conversion of agriculture lands to non-agriculture lands throughout the State of Florida. Of the State's 10.9 million acres of land, approximately 150,000 to 200,000 acres of farm land are lost to other uses yearly. Contributing to this problem is the fact that, as one parcel is converted to non-agricultural uses, the adjacent property values increase and farmers become discouraged. This impact contributes to the premature conversion of agricultural land. To reduce the impact on adjacent agricultural lands caused by the conversion of agricultural land, a clear demarcation between rural and urban land uses should be designated. The Urban Service Area of the Plan serves this purpose in the County Although the evidence failed to prove that agricultural lands adjacent to the Charboneau Property will no longer be used for agricultural purposes upon the conversion of the Charboneau Property or that such a phenomenon has occurred in the County in the past, concern over such impacts are evidenced and recognized by Objective 1.1.2 and Policy 1.1.2.4. of the Plan. The Charboneau Amendment ignores these concerns. It is, therefore, concluded that the Charboneau Amendment will detract from the continued viability of property outside the Urban Service Area for agricultural uses. Policy 1.1.2.4 requires that a development "maintain the viability of continued agricultural uses on adjacent lands." The Charboneau Amendment, even if the domino impact of the conversion of other acreage from agricultural uses may not occur, does not maintain such viability. The Charboneau Amendment is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 because it allows the conversion of agricultural property in an agricultural area (with two parcels of existing, inconsistent uses), outside the Urban Service Area and at a density that is considered an urban density: The conversion of the Charboneau Property to urban uses is not compatible with adjacent land uses. The conversion of the Charboneau Property to urban uses does not maintain the viability of continued agricultural uses on adjacent lands. The Charboneau Property contains soils that are approximately equally suited for agricultural purposes or residential purposes. Wells and septic tanks are used on subdivisions in the area and similar soils exist in areas being used for the cultivation of citrus. The Charboneau Amendment is consistent with other portions of Policy 1.1.2.4. While Objective 1.1.2 and Policy 1.1.2.4 of the Plan specifically only require that the County adopt land development regulations to govern the conversion of agricultural lands, the Objective and Policy also contain substantive provisions which must be contained in those regulations. Therefore, even though the Charboneau Amendment may not specifically impact the County's compliance with the requirement that it "adopt land development regulations," the substance of the Charboneau Amendment is inconsistent with the substantive requirements of the Objective and the Policy of the Plan and would create an inconsistency in the Plan if found to be "in compliance." Inconsistency with the State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. Goal 16 of the State Comprehensive Plan and Policies 1 and 2 of Goal 16 are as follows: (16) LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed 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. . . . . Policies.-- 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. Section 187.201(16), Florida Statutes. Converting the Charboneau Property to a non-agricultural classification outside the Urban Service Area is inconsistent with Policy 1 of Goal 16. The existence of the inconsistent uses of Fort Pierce Gardens and Pine Hollow, which were allowed because of their existence before the effective date of the Plan, does not justify further exceptions in the area outside the Urban Service Area designated for rural land uses. The existence of a nonconforming use does not justify further nonconforming uses. Inconsistency with the Treasure Coast Regional Comprehensive Policy Plan. The Treasure Coast Regional Planning Council has adopted a Regional Comprehensive Policy Plan (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for St. Lucie, Indian River, Martin and Palm Beach Counties. In its Statement of Intent, the Department has alleged that the Charboneau Amendment is inconsistent with Regional Plan Policy 16.1.2.2. Goal 16.1.2 of the Regional Plan provides, in part, the following: Land use within the Region shall be consistent with State, regional, and local Future Land Use Maps. . . . Goal 16.1.2 of the Regional Plan goes on to provide for a Regional Future Land Use Map and defines the land use categories to be included in the regional map. Policy 16.1.2.2 of the Regional Plan provides the following policy statement concerning Goal 16.1.2: Future land use maps of government comprehen- sive plans shall be based upon surveys, and data regarding the amount of land required to accommodate anticipated growth, the projected population, the character of undeveloped land, the availability of public services, the ability of government to provide adequate levels of service, and the need for redevelopment. The provisions of Policy 16.1.2.2 are also contained in Section 163.3177(6)(a), Florida Statutes. As found in more detail, supra, the Charboneau Amendment is inconsistent with Policy 16.1.2.2 because of a lack of data necessary to support an increase in residential land or increased density in the County and because it fails to promote redevelopment by infill or revitalization within the Urban Service Area.
The Issue Whether the amendment to the Future Land Use Map (FLUM) of the Putnam County Comprehensive Plan (Plan) adopted by Ordinance No. 2001-33 on December 11, 2001, which changes the future land use designation on the FLUM of an approximately 29-acre site from "Rural Residential" to "Commercial," is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the Petition for Administrative Hearing.
Findings Of Fact Petitioner, Frances Z. Parsons, lives at 215 Woodbury Trail, Satsuma, Putnam County, Florida, which is approximately one mile from the racetrack (on the site subject to the Amendment, see Findings of Fact 14 and 15) and has resided there for over seven years. Dr. Parsons understood at the time she purchased the house that a racetrack had been in existence, but was not operational and that no evidence of a racetrack could be seen from the road. A couple of years ago, Dr. Parsons noticed construction-type activity (e.g., earth-moving machines and erection of stadium-type bleachers and lights) occurring on the Property (racetrack site). Trees along the road were "bulldozed down," the site cleared, and a fence erected, after which, Dr. Parsons could see the racetrack from the road and racing commenced. Dr. Parsons also stated that the racetrack is operational and the noise level bothers her at her home. Dr. Parsons described Satsuma as "about a half a mile wide" and "fairly settled for a rural areas, but not for -- it's certainly not downtown." Dr. Parsons stated that the community character has not changed in the last five years. Dr. Parsons submitted oral or written comments and objections regarding the disputed Amendment during the period of time beginning with the transmittal hearing for the amendment and ending with the adoption of the amendment. Respondent, Putnam County, is a political subdivision of the State of Florida. Section 7.54, Florida Statutes. The County is the local government that adopted the Amendment. Respondent, Department of Community Affairs, is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes, which includes a determination of whether comprehensive plan amendments are "in compliance." Intervenor, Florida Racing, is a private corporation and is the owner of the approximately 29 acres that are the subject of the challenged Amendment. Oral or written comments and regarding the disputed Amendment were submitted on behalf of Florida Racing during the period of time beginning with the transmittal hearing for the Amendment and ending with the adoption of the Amendment. Robert Joseph Potter is the Vice- President and Comptroller for Florida Racing. The Amendment In April 2001, Florida Racing submitted to the County an "Application for Amendment to the Putnam County Future Land Use Map" (Application). This Application requested that the land use designation for an approximately 29-acre site, consisting of five contiguous parcels under the same ownership, be changed from "Rural Residential" to "Commercial" on the FLUM. The Amendment was approved and transmitted to the Department for review under Section 163.3184(6)(a), Florida Statutes. The Department conducted this review, and raised no objections to the proposed FLUM change. On December 11, 2001, the Putnam County Board of County Commissioners (Board) adopted the proposed Amendment by Ordinance No. 2001-33. The Department timely caused to be published a Notice of Intent to find the Amendment "in compliance." On or about February 28, 2002, Petitioner filed a Petition for Administrative Hearing regarding the Department's Notice of Intent. This Petition alleges that the Amendment should be found not "in compliance" on several grounds. This challenge involves an existing development, a racetrack, on the Property. However, the Amendment would allow commercial development on the approximately 29 acres, subject to compliance with applicable Plan and Putnam County Zoning Ordinance (Zoning Ordnance) provisions. (In the Application, Florida Racing advised that proposed uses included a raceway, mobile home park, restaurant, and related amenities.) The Putnam County Speedway, the Surrounding Area, and the Review Process The approximately 29-acre site (five parcels total (Property)) subject to the Amendment is the site of an existing dirt automobile racetrack with bleachers, a press box, associated structures, and a masonry building/house. A commercial mini-warehouse building (personal storage) is located on the westernmost parcel. The racetrack is currently known as the "Putnam County Speedway" (Speedway). The Property is located on the west side of U.S. Highway 17 South between the Dunn's Creek Bridge and Buffalo Bluff Road (County Road 309B). The land surrounding the Property on the west, south, and east are designated as "Rural Residential" on the FLUM, the same as the Property prior to the proposed FLUM change. The land to the north is designated as "Conservation" on the FLUM and designated as vacant and wetlands as existing land uses. The zoning is "A." See Endnote 8. The land to the east is zoned "A" and is vacant as the existing land use. The land to the north and east of the Property is part of the 1,707-acre Murphy Creek Conservation area owned and managed by the St. Johns River Water Management District. The land to the west is zoned "C-2; A" and has an existing land use of commercial, but a future land use designation on the FLUM of Rural Residential. There is also additional land to the west of the Property within the Murphy Creek Conservation Area, a couple of residences and a vacant subdivision that has been determined not to be vested for development. There is a parcel of land to the west that is also owned by Florida Racing. The land to the south is zoned "C-4, C-1, C-2, [and] A" and is designated as vacant and commercial residential as existing land uses, and has a Rural Residential future land use designation on the FLUM. See Endnote 8. The land south of the Property across U.S. 17 includes an existing commercial establishment that includes a mini-warehouse building with outside storage of equipment and semi-trailers. (The mini- warehouse was rezoned in 1986.) Also, further south and west along U.S. 17, there are two or three additional commercial businesses. Mr. Spofford referred to this area as "a commercial cluster." However, most of the uses are nonconforming uses as to the existing Rural Residential future land use, and they would not be able to change to anything more intensive or that would have more adverse impacts on the surrounding residential uses. 1 Behind the mini-warehouse building are two residential neighborhoods with two subdivisions, one with 22 lots of approximately one acre in size and the other with 19 lots, with most of the lots being significantly larger than those in the former subdivision. Another residential area further west than the two subdivisions consists of approximately 40 parcels of land which have been subdivided over time and never platted. About four of these parcels on U.S. 17 are zoned for commercial use. There is also an existing aluminum business west with a C-4 zoning. It appears that almost all of these residential lots and parcels were created after the racetrack was established. The racetrack was in operation prior to the adoption of the Plan and zoning regulations. There is evidence that a racetrack existed before 1975, but has not remained in continuous use throughout that time. The record does not detail the history of the racetrack from its initial approval some time prior to 1975 to the date of the adoption of the Amendment. There is inference that the racetrack was not actively or frequently used in the mid-1990s. (It is noted in the County Staff Report that "[a]n aerial from the Florida Department of Transportation dated February 1972 shows the subject property cleared with what appears to be an oval dirt track. A 1964 aerial photograph did not show a racetrack on the subject property. A review of property appraisal data indicate the racetrack was established around the 1970 to 1972 period.") At some point after approximately 1995, and prior to the adoption of the Amendment, racing returned to the Speedway. An automobile racetrack is not an allowable or conforming use on land designated "Rural Residential." According to the Plan's Future Land Use Element (FLUE), "[t]he Rural Residential land use category depicted on the [FLUM] consists of water front development and developed areas interspersed within the active agricultural areas. These areas are somewhat isolated from the urban areas and rural centers. The development is situated primarily on large lots in the one to five-acre range and is either a homestead or a second home for people who seek the quiet enjoyment of living in a rural environment." As a nonconforming use, the Speedway (racetrack) is subject to County land use and zoning provisions that limit or restrict the ability to undertake improvements. For example, according to the Putnam County Zoning Ordinance 88-1, as amended by Ordinance 91-31 (collectively referred to as County Zoning Ordinance or Zoning Ordinance), the racetrack, as a nonconforming use, is restricted from being extended or enlarged, and repair of its structures is limited. For example, work may be done in any 12-consecutive month period on ordinary repairs, or on repair or replacement of 15 percent of the current assessed value of the particular structure if a nonconforming structure is involved, provided the cubic content of the structure as it existed on the date it became nonconforming shall not be increased in size.2 The intent of these nonconforming use restrictions is to "permit these nonconformities to continue until they are removed, but not to encourage their survival," and it is intended that such uses would become extinguished over time as a result of being prevented from expanding or extensively renovating their structures. See, e.g., County Zoning Ordinance, Sections 2-701-2-708. On March 20, 1998, John Salmons, the Putnam County Planner, advised Tim Keyser, Attorney, that the nonconforming status of the Speedway was still in effect. Mr. Keyser was also informed, in part, that the "Putnam County Speedway may continue to operate under the provisions of the nonconforming use section of the Zoning Ordinance." At the time Florida Racing purchased the racetrack in the 1990's (the specific date is uncertain), some of the existing structures had deteriorated and were in need of repair and/or replacement. To accommodate the renewed activity in racing and the need to upgrade the racetrack, seating at the racetrack was rearranged, new seating was added for children, and a second access driveway was installed north of the existing driveway. In 2000, in a series of letters to Mr. Potter, County staff raised concerns regarding plans to significantly upgrade the racetrack. On September 26, 2000, Mr. Salmons advised Mr. Potter "that the current zoning status for the [S]atsuma racetrack is Nonconforming. As a nonconforming use, the zoning ordinance acknowledges their existence, but does not encourage their survival. As such, there are very strict rules for repairing or maintaining a nonconforming use." Mr. Salmons also informed Mr. Potter that the Property had been designated "Rural Residential" on the County's FLUM at some point subsequent to the racetrack's initial operation. (The racetrack on the Property pre-dates the Plan, including the FLUM land use categories, including "Rural Residential.") Mr. Salmons understood at the time that Mr. Potter had plans to "significantly upgrade the racetrack" and advised Mr. Potter that he "would not be able to proceed with [his] plans." In order to upgrade, Mr. Salmons advised Mr. Potter that he would need to have the Property rezoned and given the current land use designation for the Property, Mr. Potter would need to obtain an amendment to the FLUM to change the Property's land use designation from "Rural Residential" to "Commercial." However, Mr. Salmons further advised that without doing an analysis of the proposed change, he suspected that "it would be difficult for staff to support such a change" "based upon what Future Land Use patterns surround the property." Finally, Mr. Potter was told that he could continue operations "as they were in the past." But, he could not "add seating, restaurants, structures, pave the track or do much more than do some minor maintenance at this time." On December 27, 2000, Mr. Salmons sent Mr. Potter another letter similar in content to the September 26, 2000, letter. Apparently, Mr. Salmons was advised by Mr. Potter that he had already spent in excess of the 15 percent allowed in the Zoning Ordinance. Mr. Potter was advised to stop making improvements until the land use designation was changed and rezoning approved. (There have not been any legal proceedings initiated to determine whether the 15 percent threshold was crossed.) On April 16, 2001, Florida Racing submitted the Amendment Application and requested the FLUM change suggested by County staff for the Property.3 (Florida Racing also requested rezoning of the Property which is not the subject of this proceeding.) Deficiencies in the applications were noted and additional information requested. The County's FLUE of the Plan was adopted on December 12, 1991, and amended on August 24, 1993. Policy A.1.9.3.A.5. of the FLUE describes the "Commercial" land use category and provides in part: The Commercial land use areas depicted on the [FLUM] are current locations of commercial development in the County with expansion areas provided and are intended to serve as the primary commercial locations for the next 10 years. Secondary commercial locations are provided for in the policies for development in the urban service, urban reserve and rural center land use categories. Commercial land uses include activities that are predominantly associated with the sale, rental, and distribution of products or performance of service. Future development shall be allowed as follows: The maximum permitted floor area for a site shall be 1:1. The maximum permitted impervious surface shall be 70 percent of the site.4 The Staff Report dated July 11, 2001, was prepared by Mr. Spofford, A.I.C.P., a senior planner with Putnam County. As noted in the Staff Report, the purpose of the land use "change is to bring a non-conforming automobile racetrack into compliance with the" Plan. Mr. Spofford testified that the scope of the Staff Report was broader than examining the racetrack. However, the primary focus of the Staff Report is the Property being used as a racetrack and not another commercial use. It was determined that the automobile racetrack is a commercial attraction because it attracts spectators for a fee and further noted: As such, the use is not appropriate for the Agriculture I and II and Rural Residential future land use categories. The site and surrounding area do not meet the intent and description of an Urban Service or Urban Reserve future land use category because urban type infrastructure does not currently exist and is not likely within the next 10 years. This means that the use is most appropriate for a Commercial future land use category. The subject site meets the intent of the Commercial category because it is a current location of a commercial- recreational-entertainment type use. Mr. Spofford explained that the data to support the FLUM change is set forth in the Staff Report. (Mr. Salmons, Mr. Spofford's superior, believed the data in the Staff Report was adequate to support the FLUM change.) The Application was reviewed for consistency with the Plan and various provisions of Rule 9J-5. Staff made the following recommendation: The existing automobile racetrack must go through a two step process to become compliant with the Comprehensive Plan and Zoning Ordinance. First, this proposed map amendment must be approved and adopted by the County, and found to be in compliance by the Florida Department of Community Affairs (DCA). The purpose of this public hearing is to determine whether or not the proposed map amendment should be transmitted for state agency review. Therefore, the Planning Commission must recommend to either transmit the map amendment as proposed, transmit the amendment with recommended changes or not to transmit the map amendment. If the proposed map amendment is transmitted, then state agencies will review the proposed map amendment and return comments to the County in October. The County would then likely hold public hearing[s] to consider actual adoption of the map amendment in November and December. When these public hearings are held to consider the map amendment, a rezoning application would simultaneously be reviewed. A rezoning to Planned Unit Development is a negotiable process where the County can gain greater control of the use. If the proposed map amendment is not transmitted, the a rezoning will not be necessary and the automobile racetrack will continue to be a non-conforming use. As a non-conforming use, code enforcement action will be taken to have the improvements removed that consist of an expenditure greater than 15 percent of the assessed value of the structure(s), with the exception of the permitted work that includes the press box and new lighting. All other improvements could be subject to removal. However, as a non-conforming use, the racetrack would be allowed to continue operation so long as it does not expand. This means that the County would not have much control over the days and hours of operation and other critical site design issues. Although this is not the ideal location for a racetrack, the fact is it has existed on the subject property and has been determined to be a bona fide non- conforming use. Research of County records and other known available sources of information indicates that the racetrack was established prior to the residential development in close proximity south of the subject site. The request for a large-scale comprehensive plan map amendment from Rural Residential to Commercial appears to be consistent with the Comprehensive Plan. Therefore, staff recommends that the proposed map amendment be transmitted to the Florida Department of Community Affairs with a request for their review. On July 11, 2001, the Putnam County Planning Commission unanimously approved the FLUM change after receiving comments. On July 24, 2001, the Board held a public hearing to consider the Amendment and approved same. The FLUM Amendment was transmitted to the Department. Pursuant to the Department's review of the Amendment, a Memorandum dated October 4, 2001, was prepared by Russell Paul Darst, a planner with the Department, and routed to James Stansbury and Mike Sherman, the section administrator, and ultimately to Charles Gauthier, A.I.C.P., and Bureau Chief, who issued the Department's Notice of Intent. Mr. Darst, as well as others at the Department, had no objections to the Amendment. In the Memorandum, Mr. Darst concluded: "The proposed FLUM change for this 29-acre property is from Rural Residential to Commercial. The property has been used for a race track since about 1970. The amendment would change the FLUM designation for the property to reflect the actual and long-standing use of the property. This use is not allowed in the Rural Residential FLUM category." This was the crux of the data and analysis relied on by Mr. Stansbury of the Department. The Memorandum also reflected the Northeast Florida Regional Planning Council comment: "Since the raceway already exists, the land use change will not create any additional impacts to regional resources. The proposed land use change may even protect regional resources in the future by granting the County the ability to regulate the property under the most appropriate zoning classification." Dr. Darst stated that in reviewing a FLUM amendment for the Department, it would be typical to examine the existing use of the land before making his recommendation. In reviewing the County's proposed FLUM change, Mr. Darst believed, based on his discussions with County staff, that the racetrack was not expected to expand (and not that it could not) and that the change in the FLUM would give the County "part of a means of gaining effective control over [the operation of the racetrack]." He reiterated that the FLUM change would reflect the actual and long-standing use of the Property as a racetrack. On December 11, 2001, during the public hearing, the Board approved the FLUM Amendment and transmitted the approval package to the Department. On February 13, 2002, the Department had published its Notice of Intent to find the Amendment "in compliance." The Challenges Petitioner alleges that the Amendment is not "in compliance" on several grounds: first, there is no "need" for additional land to be designated for a commercial use in Putnam County; second, the Amendment and proposed land use is not compatible with the community character and surrounding land uses; and, third, the Amendment is inconsistent with provisions of the Plan, Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. Need The term "need" as used in growth management refers to the amount of land required to accommodate anticipated growth. Section 163.3177(6)(a), Florida Statutes. Local governments are to analyze by acreage how much land within each land use category5 they need to accommodate projected growth through the planning timeframe, and then base their comprehensive plan on this estimate. Rule 9J-5.006(2)(c), Florida Administrative Code. The calculus of need is rather simple and, for that reason, inexact. The calculation of how much land is needed to accommodate the projected population involves comparing what is available for development under the comprehensive plan with the projected population over the same planning timeframe applicable to the plan. An "allocation ratio" to express this need can be derived by dividing the development potential by the projected population. For example, if a comprehensive plan allocated 100 residential dwelling units over the planning timeframe and the jurisdiction's population was projected to increase by 100 over the same time, there would be an allocation ratio of 1:1. This ratio would express an exact match between supply and demand. A ratio of 2:1, on the other hand, would demonstrate that the jurisdiction had twice as much land as designated for use as the projected population is expected to need. There is no allocation ratio adopted by statute or rule by which all comprehensive plans and plan amendments are judged. There is evidence that the County has more vacant land designated "Commercial" than is needed to accommodate its projected population.6 There is data and analysis which indicates an excess of vacant commercially-designation land on a County-wide basis. For example, Florida Racing Exhibit 1 is a copy of data and analysis in support of the FLUE. This data and analysis indicates that at least as of 1991, and projected to 2001, the County has an over-allocation of need for commercial land of about two times or, stated otherwise, the County has a 2:1 allocation ratio for commercial. This data is reflected in Petitioner's Exhibit P. Mr. Spofford explained that the population data was compiled prior to 1991, has not been updated, is not meant to provide a "detailed analysis," and it is only useful for providing the acreage for each planning district. The population for each planning district is then compared to the acreage to determine the allocation of commercial to service that population. From a very general standpoint, Mr. Spofford analyzed the FLUM Amendment application in light of whether more commercial acreage was needed. Mr. Spofford explained that because the Property was so close to the edge of the planning district, it was difficult to compare the commercial and population need. However, Mr. Spofford opined that the Planning District 1 (which includes the Property) and the one to the northeast are not over-allocated for commercial use. He also opined that, generally, "more is needed, if -- especially if you're looking out 20, ten or twenty years." Petitioner did not come forward with any independent or up-to-date analysis to demonstrate the County is in fact over-allocated for commercial land use. On the other hand, Fred Goodrow, A.I.C.P., opined that the County was over-allocated regarding the need for more commercial in light of the data previously mentioned. The existence and extent of any commercial over- allocation in Putnam County is, at best, fairly debatable. Nonconforming Use, Inconsistency, and Incompatibility Petitioner asserts that the Amendment is not "in compliance" because it fails to eliminate or reduce a nonconforming use in violation of Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(3)(b)3. and (3)(c)2., Florida Administrative Code. Petitioner also argues that the Commercial land use designation which would attach to the Property is incompatible with the character of the community and adjacent land uses. Petitioner also contends that the Amendment is inconsistent with several Plan provisions. Section 163.3177(2), Florida Statutes; Rule 9J-5.005(5), Florida Administrative Code. Objective A.1.3 of the FLUE requires that "[u]pon plan adoption, Putnam County shall act to eliminate or reduce uses inconsistent with the uses identified on the [FLUM] and associated adopted Goals, Objectives and Policies through implementing the following policies." Policy A.1.3.1 of the FLUE requires revision of the County's Land Development Regulations, specifically the County Zoning Code, "to reinforce its current provisions regarding the elimination of nonconforming land uses by expanding the definition of nonconforming land uses to include all uses which are inconsistent with the Future Land Use Map 2001 or cannot be made compatible with adjacent land uses. The requirements of this provision shall be enforced upon application for building permits to repair or improve such structures."7 The nonconforming use provisions of the Zoning Ordinance apply to and implement the FLUM. An automobile racetrack is not an appropriate use to put in a Rural Residential future land use category. In theory, one purpose of this land use designation is to protect residents from the intrusion of noisy racetracks which can impact an adjacent residential user. The dispute in this case is clearly framed. Petitioner contends that because the Property was designated "Rural Residential" when the County's Plan was adopted, the Speedway (racetrack) is a nonconforming use which must be restricted and eventually eliminated. Petitioner argues that the County lacks the authority to amend its FLUM to make the Speedway a conforming use under the Plan. Respondents and Florida Racing contend that the County has the authority to amend the FLUM, and acted properly in this instance in adopting the Amendment. The County has the authority to amend its FLUM, including the designations of properties as long as the designations are consistent with other provisions of the Plan and applicable provisions of Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. The persuasive evidence indicates that an automobile racetrack is an allowable use in the Commercial future land use category as opposed to the Rural Residential category. If the Amendment is approved, the raceway would no longer be considered a nonconforming use for Plan purposes, and could undertake improvements without the restrictions that accompany such a use, subject to compliance with applicable zoning requirements. Stated otherwise, the racetrack could expand without complying with the nonconforming use restrictions, subject to compliance with the nonconforming standards in the Zoning Ordinance because the Property would remain a nonconforming use under the Zoning Ordinance. (Of course, a zoning change for the Property, as contemplated in the County's Staff Report, would create different considerations as noted below.) The Property is currently zoned C-2 and A, with the bulk of the property zoned agriculture.8 If the Amendment is approved, the next step would be for the Property owner to apply for a zoning change, e.g., special exception, or pursue a planned unit development. Under either scenario, the County could impose conditions on the use of the Property such as the amelioration of off-site impacts. On the other hand, if the racetrack continued as a nonconforming use, the persuasive evidence indicates that the County would be limited in establishing any further limitation on the use of the Property, such as duration and frequency of use, e.g., hours of operation and other site design issues. There is no persuasive support for the proposition that all subsequent Boards of County Commissioners are bound in every instance by the decision of one Board regarding the land use of a particular parcel. There is some evidence that leads to at least a fair inference that the designation of the racetrack site as "Rural Residential" may have been in error. The data and analysis that was used to support the original designation indicates the area including the racetrack as being "woodlands." The County planner involved in the preparation of the Plan, including the FLUM, testified that he did not know there was a racetrack on the land designated "woodlands." The FLUM was based "to a great extent" on this data, and very well may have designated the Property as "Rural Residential" by "oversight" based on the incorrect representation of the area as woodlands. Several other commercial uses exist within the immediate vicinity of the site of the Property, are similarly depicted as "woodlands" by the referenced data, and are designated "Rural Residential" on the FLUM. These parcels, too, may be nonconforming by error, and not by some deliberate choice. Whether the original designation of the Property as nonconforming was erroneous or not, the true question is what is the proper standard by which to weigh a FLUM amendment when it affects a site on which there exists a nonconforming use. Neither Chapter 163, Part II, Florida Statutes, nor Rule 9J-5, Florida Administrative Code, directs the Department to review a FLUM amendment involving a nonconforming use under some specific provisions. Such an amendment must be subjected to the same standards applicable to any FLUM amendment. The Property has been used intermittently as a racetrack for approximately 30 years. A racetrack has operated on the Property as a nonconforming use, and has the right to continue do so under applicable County land use and zoning regulations. The racetrack is, in fact, eligible to expand by 15 percent under these regulations. The County would not have some absolute right to cease racetrack operations if it remained nonconforming, and would not have unlimited authority to address noise and traffic concerns. The uncontradicted testimony is that it is likely that the racetrack would continue to operate even if it remained a nonconforming use. The County does not lose any authority to address noise and traffic by virtue of the Amendment. Credible evidence in the record indicates that the County may actually have a better ability to address these concerns should the racetrack be made a conforming use. Nevertheless, the fact that the racetrack, operated as the Speedway, currently exists in the area as a nonconforming use does not mean that the use is automatically compatible with the adjacent land uses and surrounding area or is otherwise consistent with the character of the community. The nonconforming use designation only means that the racetrack can continue to operate, not that the racetrack can achieve a potentially more useful and elevated land use status by virtue of being an existing raceway and commercial use. Otherwise, an existing nonconforming use would have greater rights to a new and more permissive land use designation than a new entrant into the marketplace. Stated otherwise, the FLUM Amendment, if approved, will further and encourage the nonconforming use rather than its eventual elimination as contemplated by the Plan and Zoning Ordinance. In this case, it is beyond fair debate that if a new automobile racetrack were proposed on the Property today, it would be inconsistent with the existing residential and conservation areas surrounding the property, notwithstanding the existence of several commercial properties in the vicinity. The only reasonable conclusion to be reached is that that the Amendment is not "in compliance."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Amendment adopted by Putnam County in Ordinance No. 2001- 33 is not "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2003.
The Issue The issue in this case is whether the amendments to Miami- Dade County’s Comprehensive Development Master Plan (CDMP), adopted through Ordinance Nos. 08-44 and 08-45, are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review amendments to local comprehensive plans and to determine whether the amendments are “in compliance,” pursuant to Section 163.3184, Florida Statutes. The County is a political subdivision of the State and has adopted a local comprehensive plan that the County amends from time to time. 1000 Friends is a Florida not-for-profit corporation that maintains its headquarters in Tallahassee, Florida. Its corporate purpose is to ensure the fair and effective implementation of the Growth Management Act, Chapter 163, Part II, Florida Statutes, through education, lobbying, research and litigation. 1000 Friends has approximately 3,500 members, 174 of whom live in the County. NPCA is a foreign, not-for-profit corporation that is registered to do business in Florida. Its headquarters are in Washington, D.C. It has a branch office in Hollywood, Broward County, Florida. NPCA’s purpose is to protect and preserve national parks, including Everglades National Park. NPCA has approximately 340,000 members, 1,000 of whom live in the County. Barry White and Karen Esty are residents of the County. Lowe’s is a for-profit corporation that owns and operates a business in the County. David Brown, along with his father and brother, is a co-applicant for the Brown amendment. For the purpose of this Recommended Order, the Department and the Intervenors aligned with the Department will be referred to, collectively, as Petitioners. Standing Lowe’s filed the application with the County that resulted in Ordinance No. 08-44 (Lowe’s Amendment). Lowe’s submitted comments to the County concerning the Lowe’s Amendment during the period of time from the County’s transmittal of the amendment to the County’s adoption of the amendment. Brown filed the application with the County that resulted in Ordinance No. 08-45 (Brown Amendment). Brown resides in the County. Brown is a manager/member of BDG Kendall 172, LLC, which has a contract to purchase the larger of the two parcels on the application site. Brown is also a manager/member of BDG Kendall 162, LLC, which owns and operates a business in Miami-Dade County. Brown submitted comments to the County at the transmittal and adoption hearings. 1000 Friends submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. 1000 Friends presented its comments to the County on behalf of its members who reside in the County. 1000 Friends does not own property or maintain an office in the County. 1000 Friends does not pay local business taxes in the County and did not show that it is licensed to conduct a business in the County. 1000 Friends has engaged in fundraising, lobbying, and litigation in the County. Its activities include efforts to promote growth management, affordable housing, and Everglades restoration. 1000 Friends did not show that its activities in the County subject it to the provisions of the CDMP. NPCA submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. NPCA presented its comments to the County on behalf of NPCA members who reside in the County. NPCA does not own property or maintain an office in the County. No evidence was presented to show that NPCA pays business taxes in the County or that it is licensed to conduct business in the County. NPCA did not show that its activities in the County subject it to the provisions of the CDMP. Barry White and Karen Esty are residents of the County. They submitted comments to the County regarding the amendments during the period of time from the transmittal of the amendments to their adoption. The Amendment Adoption Process The applications which resulted in the Lowe’s and Brown Amendments were submitted to the County during the April 2007 plan amendment cycle. The County’s review process for comprehensive plan amendments includes a public hearing before the community council which has jurisdiction over the area of the County where the affected lands are located. Following the public hearings on the proposed Lowe’s and Brown Amendments, the community councils recommended that the Board of County Commissioners approve the amendments. The County’s Planning Advisory Board also reviews proposed amendments before the transmittal and adoption hearings. Following public hearings on the proposed Lowe’s and Brown Amendments, the Planning Advisory Board recommended that the Board of County Commissioners approve the amendments for transmittal and for adoption. The County planning staff recommended that the proposed amendments be denied and not transmitted to the Department. The principal objection of the planning staff was that the expansion of the Urban Development Boundary (UDB), an aspect of both proposed amendments, was unjustified. In November 2007, the Board of County Commissioners voted to transmit the amendments to the Department. The Department reviewed the proposed amendments and issued its Objections, Recommendations, and Comments (ORC) Report on February 26, 2008. In the ORC Report, the Department stated that expanding the UDB would be internally inconsistent with the CDMP because the need for the expansion had not been demonstrated. In addition the Department determined that the Lowe’s Amendment was inconsistent with CDMP policies regarding the protection of wetlands, and the Brown Amendment was inconsistent with CDMP policies regarding the protection of agricultural lands. When the amendments came before the Board of County Commissioners after the ORC Report in March 2008, the County planning staff recommended that the amendments be denied, repeating its belief that the expansion of the UDB would be inconsistent with the CDMP. Under the County’s Code of Ordinances, an expansion of the UDB requires approval by a two-thirds vote of the Board of County Commissioners. The County adopted the amendments through Ordinances No. 08-44 and 08-45 on April 24, 2008. On April 30, 2008, the Mayor Carlos Alvarez vetoed the ordinances, citing inconsistencies with the UDB policies of the CDMP. His veto was overridden by a two-thirds vote of the Board of County Commissioners on May 6, 2008. On July 18, 2008, the Department issued its Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance. The Lowe’s Amendment The Lowe’s Amendment site consists of two parcels located in close proximity to the intersection of Southwest 8th Street, also known as Tamiami Trail, and Northwest 137th Avenue. The easternmost parcel, Parcel A, is 21.6 acres. The adjacent parcel to the west, Parcel B, is 30.1 acres. Neither parcel is currently being used. About 50 percent of both Parcels A and B are covered by wetlands. The wetlands are partially drained and show encroachment by exotic vegetation, including Melaleuca and Australian pine. The Lowe’s site is located within the Bird Trail Canal Basin, which the CDMP characterizes as containing “heavily impacted, partially drained wetlands.” Both Parcels A and B are currently designated Open Land under the CDMP, with a more specific designation as Open Land Subarea 3 (Tamiami-Bird Canal Basins), and can be used for residences at densities of up to one unit per five acres, compatible institutional uses, public facilities, utility and communications facilities, certain agricultural uses, recreational uses, limestone quarrying, and ancillary uses. East of the Lowe’s site is another parcel owned by Lowe’s that is designated Business and Office and is within the UDB. North and west of the Lowe’s site is Open Land. The Lowe’s site is bordered on the south by Tamiami Trail, a six- lane road. Across Tamiami Trail is land designated Business and Office. The Lowe’s amendment would reclassify Parcel A as Business and Office and Parcel B as Institution, Utilities, and Communications. The Lowe’s Amendment would also extend the UDB westward to encompass Parcels A and B. The Business and Office designation allows for a wide range of sales and service activities, as well as compatible residential uses. However, the Lowe’s amendment includes a restrictive covenant that prohibits residential development. The Institution, Utilities, and Communications land use designation allows for “the full range of institution, communications and utilities,” as well as offices and some small businesses. Parcel A is subject to another restrictive covenant that provides that Lowe’s shall not seek building permits for the construction of any buildings on Parcel A without having first submitted for a building permit for the construction of a home improvement store. The use of Parcel B is restricted to a school, which can be a charter school. If a charter school is not developed on Parcel B, the parcel will be offered to the Miami-Dade County School Board. If the School Board does not purchase Parcel B within 120 days, then neither Lowe’s nor its successors of assigns have any further obligations to develop a school on Parcel B. The Brown Amendment The Brown Amendment involves four changes to the CDMP: a future land use re-designation from “Agriculture” to “Business and Office”; an expansion of the UDB to encompass the Brown site; a prohibition of residential uses on the site; and a requirement that the owner build an extension of SW 172nd Avenue through the site. The Agriculture designation allows agricultural uses and single family residences at a density of one unit per five acres. The proposed Business and Office land use designation allows a wide range of commercial uses, including retail, professional services, and office. Residential uses are also allowed, but the Declaration of Restrictions adopted by the County with the Brown Amendment prohibits residential development. The Brown Amendment site is 42 acres. Some of the site is leased to a tenant farmer who grows row crops. The balance is vacant and not in use. The Brown site has a triangular shape. Along the sloping northern/eastern boundary is Kendall Drive. Kendall Drive is a major arterial roadway, a planned urban corridor, and part of the state highway system. On the site's western boundary is other agricultural land. There is commercial development to the east. Along the southern boundary is the 1200-unit Vizcaya Traditional Neighborhood Development, which is within the UDB. The entirety of the Brown site has been altered by farming activities. In the southwest portion of the site is a four-acre, degraded wetland that is part of a larger 28-acre wetland located offsite. The wetland is not connected to any state waters and the Army Corps of Engineers has not asserted jurisdiction over it. The wetland is not on the map of “Future Wetlands and CERP Water Management Areas” in the Land Use Element of the CDMP. The dominant plants in the wetland are exotic species. There is no evidence that any portion of the site is used by any threatened or endangered species. The Urban Development Boundary and Urban Expansion Area The principal dispute in this case involves the application of Policies LU-8F and LU-8G of the CDMP regarding the expansion of the UDB. Policy LU-8F directs that adequate supplies of residential and nonresidential lands be maintained in the UDB. If the supply of lands becomes inadequate, Policy LU-8G addresses where the expansion of the UDB should occur. The UDB is described in the Land Use Element: The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2015 from areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2015 provided that level- of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by increasing development densities or intensities inside the UDB, or by expanding the UDB, when the need for such change is determined to be necessary through the Plan review and amendment process. The UDB promotes several planning purposes. It provides for the orderly and efficient construction of infrastructure, encourages urban infill and redevelopment, discourages urban sprawl, and helps to conserve agricultural and environmentally-sensitive lands. The County only accepts applications for amendments seeking to expand the UDB once every two years, unless they are directly related to a development of regional impact. In contrast, Chapter 163, Florida Statutes, allows two amendment cycles in a calendar year, Amendments that would expand the UDB must be approved by at least two-thirds of the total membership of the Board of County Commissioners. Other types of amendments only require a majority vote of the quorum. Outside the UDB are County lands within the relatively small Urban Expansion Area (UEA), which is described in the CDMP as “the area where current projections indicate that further urban development beyond the 2015 UDB is likely to be warranted some time between the year 2015 and 2025.” The UEA consists of lands that the CDMP directs “shall be avoided” when the County is considering adding land to the UDB. They are (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. The “future” wetlands on this list are existing wetland areas delineated by the County on Figure 14 of the Land Use Element. A far larger area of the County, mostly west of the UDB and UEA, consists of lands that the CDMP directs “shall not be considered” for inclusion in the UDB. These are water conservation areas, lands associated with Everglades National Park, the Redland agricultural area, and wellfield protection areas. Policy LU-8F Policy LU-8F of the Land Use Element provides: The Urban Development Boundary (UDB) should contain developable land having capacity to sustain projected countywide residential demand for a period of 10 years after adoption of the most recent Evaluation and Appraisal Report (EAR) plus a 5-year surplus (a total 15-year Countywide supply beyond the date of EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy LU-7F. The adequacy of non- residential land supplies shall be determined on the basis of land supplies in subareas of the County appropriate to the type of use, as well as the Countywide supply within the UDB. The adequacy of land supplies for neighborhood- and community- oriented business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, Minor Statistical Areas (MSAs) and combinations thereof. Tiers, Half-Tiers and combinations thereof shall be considered along with the Countywide supply when evaluating the adequacy of land supplies for regional commercial and industrial activities. There is no further guidance in the CDMP for determining the “adequacy of land supplies” with respect to nonresidential land uses. Neither Chapter 163, Florida Statutes, nor Florida Administrative Code Chapter 9J-5 requires that local governments use a particular methodology to determine the adequacy of nonresidential land supplies. The County’s usual methodology for determining need is described in the Planning Considerations Report that the County planning staff prepared for the 2007 amendment cycle. A report like this one is prepared by the staff for each amendment cycle to evaluate the adequacy of the CDMP to accommodate growth and to evaluate pending amendment applications. The County compares a proposed use to its immediate surroundings and the broader area of the County in which the proposed use is located. The basic geographic unit used in the County’s need analysis is the Minor Statistical Area (MSA). Larger planning areas, called Tiers, are groupings of MSAs. The County is divided into 32 MSAs and four Tiers. The Lowe’s Amendment site is in MSA 3.2, but it is on the border with MSA 6.1, so the two MSAs were consolidated for the County’s need analysis regarding the Lowe’s Amendment, even though MSA 3.2 is in the North Central Tier and MSA 6.1 is in the South Central Tier. The Brown Amendment is in MSA 6.2, but it is close to MSA 6.1, so the County combined the two MSAs for its need analysis for the Brown Amendment. Both MSAs are in the South Central Tier. The Planning Considerations Report contains a 2007 inventory of commercial land. The only vacant land used in the analysis of available commercial land supply was land zoned for business, professional office, office park, or designated Business and Office on the Land Use Map. Although it is stated in the Planning Considerations Report that lands zoned or designated for industrial uses are often used for commercial purposes, this situation was not factored into the calculation of the available supply of commercial lands. The County also excluded any supply that could be gained from the redevelopment of existing sites. Petitioners contend, therefore, that the County’s need for commercial land is less than the planning staff calculated in the Planning Considerations Report. On the other hand, Respondents contend that the County’s need for commercial land is greater than the planning staff calculated in the Planning Considerations Report because the County planning staff did not apply a “market factor” for commercial lands as it does for residential lands. A market factor is considered by some professional planners to be appropriate for commercial land uses to account for physical constraints and other factors that limit the utilization of some vacant parcels, and to prevent situations where the diminished supply of useable parcels causes their prices to rise steeply. The CDMP recognizes the problem in stating that: impediments can arise to the maximum utilization of all lands within the boundaries [of the UDB]. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density and character of a particular area. The County used a market factor of 1.5 (50 percent surplus) to determine the need for residential land. The County did not use a market factor in its analysis of the need for commercial land. The Department’s expert planning witness, Mike McDaniel, testified that the Department generally supports use of a 1.25 allocation (25 percent surplus). The County’s most recent UDB expansions for nonresidential uses (other than Lowe’s and Brown) were the Beacon Lakes and Shoppyland amendments in 2002. The Beacon Lakes and Shoppyland UDB expansions were approved despite the fact that the County did not project a need for more industrial land within the planning horizon. The need determinations for these amendments were not based on the use of a market factor, but on a percieved2`` need for the particular land uses proposed – warehouses and related industrial uses on large parcels to serve the Miami International Airport and the Port of Miami. The evidence indicates that the County’s exclusion from its analysis of industrial lands that can be used for commercial purposes, and additional commercial opportunities that could be derived from the redevelopment of existing sites, is offset by the County’s exclusion of a market factor. If the supply of commercial land had been increased 25 percent to account for industrial lands and redevelopment, it would have been offset by a 1.25 market factor on the demand side. The calculations made by the County in its Planning Considerations Report would not have been materially different. The Planning Considerations Report analyzes commercial demand (in acres) through the years 2015 and 2025, and calculates a “depletion year” by MSA, Tier, and countywide. A depletion year is the year in which the supply of vacant land is projected to be exhausted. If the depletion year occurs before 2015 (the planning horizon for the UDB), that is an indication that additional lands for commercial uses might be needed. The County planning staff projected a countywide depletion year of 2023, which indicates there are sufficient commercial lands in the County through the planning horizon of 2015. The County then projected the need for commercial land by MSA and Tier. MSA 3.2, where the Lowe’s site is located, has a depletion year of 2025, but when averaged with MSA 6.1’s depletion years of 2011, results in an average depletion year of 2018. The North Central Tier, in which the Lowe’s Amendment site is located, has a depletion year of 2023. The County’s depletion year analysis at all three levels, MSA, Tier, and countywide, indicates no need for more commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a depletion year of 2017, but when combined with MSA 6.1’s depletion of 2011, results in an average depletion year for the two MSAs is 2014. The South Central Tier, in which the Brown Amendment site is located, has a depletion year of 2014. Therefore, the County’s depletion year analysis, at the MSA and Tier levels, indicates a need for more commercial lands in the area of the Brown site. The County also analyzed the ratio of commercial acres per 1,000 persons by MSA, Tier, and county-wide. The countywide ratio is not a goal that the County is seeking to achieve for all Tiers and MSAs. However, if a Tier or MSA shows a ratio substantially lower than the countywide ratio, that MSA or Tier might need more commercial lands. The countywide ratio of commercial lands per 1,000 persons is projected to be 6.1 acres per 1,000 persons in 2015. MSA 3.2, in which the Lowe’s site is located, has a ratio of 11.3 acres per 1,000 persons. MSA 6.1 has a ratio of 2.6 acres. The average for the two MSAs is 6.95 acres. The ratio for all of the North Central Tier is 6.3 acres per 1,000 persons. Therefore, a comparison of the countywide ratio with the MSAs and Tier where the Lowe’s site is located indicates there is no need for additional commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a ratio of 4.1 acres per 1,000 persons. When combined with MSA 6.1’s ratio of 2.6 acres, the average for the two MSAs is 3.35 acres. The ratio for all of the South Central Tier is 4.5 acres per 1,000 persons. Therefore, a comparison with the countywide ratio of 6.1 acres indicates a need for additional commercial lands in the area of the Brown site. The County’s need analysis treated the Kendall Town Center as vacant (i.e., available) commercial land, but the Kendall Town Center is approved and under construction. If the Kendall Town Center had been excluded, the County’s projected future need for commercial land in the area of the Brown site would have been greater. The Planning Considerations Report does not discuss parcel size in its commercial need analysis. Lowe’s contends that the County should have considered whether there is a need for larger “community commercial” uses in the area of the Lowe’s site. Policy LU-8F refers only to the need to consider (by “Tiers, Half-Tiers and combinations thereof”) the adequacy of land supplies for “regional commercial activities.” Lowe’s planning expert testified that there are few undeveloped commercial parcels in MSAs 3.2 and 6.1 that are ten acres or more, or could be aggregated with contiguous vacant parcels to create a parcel bigger than ten acres. Lowe’s submitted two market analyses for home improvement stores, which conclude that there is a need for another home improvement store in the area of the Lowe’s site. The market analyses offered by Lowe’s differ from the County’s methodology, which focuses, not on the market for a particular use, but on the availability of commercial lands in appropriate proportion to the population. Even when it is reasonable for the County to consider the need for a unique use, the County’s focus is on serving a general public need, rather than on whether a particular commercial use could be profitable in a particular location. Some of the assumptions used in the market analyses offered by Lowe’s were unreasonable and biased the results toward a finding of need for a home improvement store in the study area. The more persuasive evidence shows that there is no need for more commercial land, and no need for a home improvement store, in the area of the Lowe’s site. Lowe’s Parcel B is proposed for use as a school. The elementary, middle and high schools serving the area are over- capacity. Lowe’s expects the site to be used as a charter high school. Using an inventory of lands that was prepared by the County staff, Lowe’s planning expert investigated each parcel of land located within MSAs 3.2 and 6.1 that was over seven acres2 and determined that no parcel within either MSA was suitable for development as a high school. The record is unclear about how the Lowe’s Amendment fits into the plans of the County School Board. The proposition that there are no other potential school sites in the area was not firmly established by the testimony presented by Lowe’s. The need shown for the school site on Parcel B does not overcome the absence of demonstrated need for the Business and Office land use on Parcel A. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8F. The County’s determination that the Brown Amendment is consistent with Policy LU-8F is fairly debatable. Policy LU-8G Policy LU-8GA(i) identifies lands outside the UDB that “shall not be considered for inclusion in the UDB. Policy LU- 8G(ii) identifies other lands that “shall be avoided,” including (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. A peculiarity of the UEA is that it is composed entirely of lands that “shall be avoided” when the County considers adding lands to the UDB. The Department contends that “shall be avoided” means, in this context, that the County must make “a compelling showing that every other option has been exhausted” before the UDB can be expanded. However, the CDMP does not express that specific intent. The CDMP does not provide any direct guidance about how compelling the demonstration must be to expand the UDB. Policies LU-8F and LU-8G appear to call for a balancing approach, where the extent of the need for a particular expansion must be balanced against the associated impacts to UEA lands and related CDMP policies. The greater the needs for an expansion of the UDB, the greater are the impacts that can be tolerated. The smaller the need, the smaller are the tolerable impacts. Because the need for the Lowe’s Amendment was not shown, the application of the locational criteria in Policy LU- 8G is moot. However, the evidence presented by Lowe’s is addressed here. Within the meaning of Policy LU-8G(ii)(a), the wetlands that “shall be avoided” are those wetlands that are depicted on the Future Wetlands Map part of the Land Use Element of the CDMP. About 50 percent of the Lowes site is covered by wetlands that are on the Future Wetlands Map. Petitioners speculated that the construction of a Lowe’s home improvement store and school on the Lowe’s site could not be accomplished without harm to the wetlands on the site, but they presented no competent evidence to support that proposition. The wetland protections afforded under the environmental permitting statutes would not be affected by the Lowe’s Amendment. Nevertheless, this is a planning case, not a wetland permitting case. It is a well-recognized planning principle that lands which have a high proportion of wetlands are generally not suitable for land use designations that allow for intense uses. The Lowe’s Amendment runs counter to this principle. Policy LU-8F(iii) identifies areas that “shall be given priority” for inclusion in the UDB: Land within Planning Analysis Tiers having the earliest projected supply depletion year; Lands contiguous to the UDB; Locations within one mile of a planned urban center or extraordinary transit service; and Lands having projected surplus service capacity where necessary services can be readily extended. The Lowe’s site satisfies all but the first criterion. The Lowe’s site is in the Tier with the latest projected supply depletion year. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8G. Because a reasonable showing of need for the Brown Amendment was shown, it is appropriate to apply the locational criteria of Policy LU-8G. The Brown Amendment would expand the UDB into an area of the UEA that is designated Agriculture. The single goal of the CDMP’s Land Use Element refers to the preservation of the County’s “unique agricultural lands.” The CDMP refers elsewhere to the importance of protecting “viable agriculture.” Brown argued that these provisions indicate that the County did not intend to treat all agricultural lands similarly, and that agricultural activities like those on the Brown site, that are neither unique nor viable, were not intended to be preserved. Petitioners disagreed. The County made the Redland agricultural area one of the areas that “shall not be considered” for inclusion in the UDB. Therefore, the County knew how to preserve “unique” agricultural lands and prevent them from being re-designated and placed in the UDB. The only evidence in the record about the economic “viability” of the current agricultural activities on the Brown site shows they are marginally profitable, at best. The Brown site is relatively small, has a triangular shape, and is wedged between a major residential development and an arterial roadway, which detracts from its suitability for agricultural operations. These factors also diminish the precedent that the re-designation of the Brown site would have for future applications to expand the UDB. The Brown site satisfies all of the criteria in Policy LU-8G(iii) to be given priority for inclusion in the UDB. The County’s determination that the Brown Amendment is consistent with Policy LU-8G is fairly debatable. Policy EDU-2A Policy EDU-2A of the CDMP states that the County shall not purchase school sites outside the UDB. It is not clear why this part of the policy was cited by Petitioners, since the Lowe’s Amendment would place Parcel B inside the UDB. Policy EDU-2A also states that new elementary schools “should” be located at 1/4 mile inside the UDB, new middle schools “should” be located at least 1/2 mile inside the UDB, and new high schools “should” be located at least one mile inside the UDB. The policy states further that, “in substantially developed areas,” where conforming sites are not available, schools should be placed as far as practical from the UDB. Petitioners contend that the Lowe’s Amendment is inconsistent with Policy EDU-2A because Parcel B, the school site in the Lowe’s Amendment, would be contiguous to the UDB if the Lowe’s Amendment were approved. However, when a policy identifies circumstances that allow for an exception to a stated preference, it is necessary for challengers to show that the exceptional circumstances do not exist. It was Petitioners’ burden to demonstrate that there were conforming school sites farther from the UDB in the area of the Lowe’s site. Petitioners did meet their burden. The County’s determination that the Lowe’s Amendment is consistent with Policy EDU-2A is fairly debatable. Urban Sprawl 1000 Friends and NPCA allege that the Brown and Lowe’s Amendments would encourage the proliferation of urban sprawl. The Department did not raise urban sprawl as an “in compliance” issue. Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl. The presence and potential effects of multiple indicators is to be considered to determine “whether they collectively reflect a failure to discourage urban sprawl.” Fla. Admin. Code R. 9J- 5.006(5)(d). Indicator 1 is designating for development “substantial areas of the jurisdiction to develop as low- intensity, low-density, or single use development or uses in excess of demonstrated need.” It was found, above, that the County had a reasonable basis to determine there was a need for the Brown Amendment, but not for the Lowe’s Amendment. Therefore, this indicator is triggered only by the Lowe’s Amendment. Indicator 2 is designating significant amounts of urban development that leaps over undeveloped lands. The facts do not show that undeveloped lands were leaped over for either of the amendments. Indicator 3 is designating urban development “in radial, strip, isolated, or ribbon patterns.” The Lowe’s and Brown Amendments do not involve radial or isolated development patterns. What would constitute a “ribbon” pattern was not explained. Not every extension of existing commercial uses constitutes strip sprawl Other factors need to be considered. For example, both the Lowe’s and Brown sites are at major intersections where more intense land uses are commonly located. Under the circumstances shown in this record, this indicator is not triggered for either amendment. Indicator 4 is premature development of rural land that fails to adequately protect and conserve natural resources. This indicator is frequently cited by challengers when an amendment site contains wetlands or other natural resources, without regard to whether the potential impact to these resources has anything to do with sprawl. In the area of the Lowe’s site, the UDB generally divides urbanized areas from substantial wetlands areas that continue west to the Everglades. The Lowe’s Amendment intrudes into an area dominated by wetlands and, therefore, its potential to affect wetlands is an indication of sprawl. In the area of the Brown Amendment, the UDB generally separates urbanized areas from agricultural lands that already have been substantially altered from their natural state. The Brown Amendment invades an agricultural area, not an area of natural resources. Therefore, the potential impacts of the Brown Amendment on the small area of degraded wetlands on the Brown site do not indicate sprawl. Indicator 5 is failing to adequately protect adjacent agricultural areas and activities. Because this indicator focuses on “adjacent” agricultural areas, it is not obvious that it includes consideration of effects on the amendment site itself. If this indicator applies to the cessation of agricultural activities on the Brown site, then the Brown Amendment triggers this primary indicator. If the indicator applies only to agricultural activities adjacent to the Brown site, the evidence was insufficient to show that this indicator is triggered. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. Urban sprawl is generally indicated when new public facilities must be created to serve the proposed use. Petitioners did not show that new public facilities must be created to serve the Lowe’s or Brown sites. The proposed amendments would maximize the use of existing water and sewer facilities. Petitioners did not show that the amendments would cause disproportionate increases in the costs of facilities and services. Indicator 9 is failing to provide a clear separation between rural and urban uses. The Lowe’s Amendment would create an irregular and less clear separation between urban and rural uses in the area and, therefore, the Lowe’s Amendment triggers this indicator. The Brown Amendment does not trigger this indicator because of it is situated between the large Vizcaya development and Kendall Drive, a major arterial roadway. The Brown Amendment would create a more regular separation between urban and rural uses in the area. Indicator 10 is discouraging infill or redevelopment. The CDMP delineates an Urban Infill Area (UIA) that is generally located east of the Palmetto Expressway and NW/SW 77th Avenue. Petitioners did not demonstrate that the Brown and Lowe’s Amendments discourage infill within the UIA. Petitioners did not show how any particular infill opportunities elsewhere in the UDB are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive for infill. This indicator, therefore, is triggered to a small degree by both amendments. The CDMP promotes redevelopment of buildings that are substandard or underdeveloped. Petitioners did not show how any particular redevelopment opportunities are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive to redevelop existing properties. This indicator, therefore, is triggered to a small degree by both amendments. Indicator 11 is failing to encourage or attract a functional mix of uses. Petitioners failed to demonstrate that this primary indicator is triggered. Indicator 12 is poor accessibility among linked or related uses. No evidence was presented to show that this indicator would be triggered. Indicator 13 is the loss of “significant” amounts of open space. These amendments do not result in the loss of significant amounts of open space, whether measured by acres, by the percentage of County open lands converted to other uses, or by any specific circumstances in the area of the amendment sites. Evaluating the Lowe’s Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment fails to discourage the proliferation of urban sprawl. Evaluating the Brown Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Brown Amendment does not fail to discourage the proliferation of urban sprawl. Land Use Analysis The Department claims that the Lowe’s and Brown Amendments are inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c), which requires that the land use element of a comprehensive plan be based on an analysis of the amount of land needed to accommodate projected population. The Department believes the analyses of need presented by Lowe’s and Brown’s consultants were not professionally acceptable. Petitioners proved by a preponderance of the evidence that there was no need for the Lowe’s Amendment. Therefore, the Lowe’s Amendment is inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c). A preponderance of competent, substantial, and professionally acceptable evidence of need, in conformance with and including the methodology used by the County planning staff, demonstrated that the Brown Amendment is consistent with Florida Administrative Code Rule 9J-5.006(2)(c).3 Florida Administrative Code Chapter 9J-5 - Natural Resources Petitioners contend the Lowe’s Amendment is inconsistent with the provisions of Florida Administrative Code Chapter 9J-5, which require that the land use element of every comprehensive plan contain a goal to protect natural resources, and that every conservation element contain goals, objectives, and policies for the protection of vegetative communities, wildlife habitat, endangered and threatened species, and wetlands. Petitioners failed to prove by a preponderance of the evidence that the CDMP does not contain these required goals, objectives, and policies. Therefore, Petitioners failed to prove that the Lowe’s amendment is inconsistent with these provisions of Florida Administrative Code Chapter 9J-5.4 The State Comprehensive Plan Petitioners contend that the Lowe’s and Brown amendments are inconsistent with several provisions of the State Comprehensive Plan. Goal (9)(a) of the State Comprehensive Plan and its associated policies address the protection of natural systems. Petitioners contend that only the Lowe’s Amendment is inconsistent with this goal and its policies. For the reasons stated previously, Petitioners showed by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its policies. Goal (15)(a) and its associated policies address land use, especially development in areas where public services and facilities are available. Policy (15)(b)2. is to encourage a separation of urban and rural uses. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and policy. For the reasons stated above, Petitioners failed to show by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies Goal (16)(a) and its associated policies address urban and downtown revitalization. Although the expansion of the UDB diminishes the incentive to infill or redevelop, Petitioners did not show this effect, when considered in the context of the CDMP as a whole and the State Comprehensive Plan as a whole, impairs the achievement of this goal and its associated policies to an extent that the proposed amendments are inconsistent with this goal of the State Comprehensive Plan and its associated policies. Goal (17)(a) and its associated policies address the planning and financing of and public facilities. For the reasons stated previously, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the proposed amendments is inconsistent with this goal and its associated policies. Goal (22)(a) addresses agriculture. Policy(b)1. is to ensure that state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. This policy recognizes that agricultural landowners have the same right to seek to change the use of their lands, and that engaging in agricultural activities is not a permanent servitude to the general public. The policies cited by Petitioners (regarding the encouragement of agricultural diversification, investment in education and research, funding of extension services, and maintaining property tax benefits) are not affected by the Brown Amendment. For the reasons stated above, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies. Goal (25)(a) and its associated policies address plan implementation, intergovernmental coordination and citizen involvement, and ensuring that local plans reflect state goals and policies. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, and was found to contribute to the proliferation of urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Petitioners proved by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Lowe’s Amendment is inconsistent with the State Comprehensive Plan. Petitioners failed to prove by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Brown Amendment is inconsistent with the State Comprehensive Plan.. Strategic Regional Policy Plan Petitioners claim that the Lowe’s Amendment is inconsistent with Goals 11, 12, and 20 of the Strategic Regional Policy Plan of the South Florida Regional Planning Council (SFRPC) and several policies associated with these goals. The SFRPC reviewed the proposed Brown Amendment and found it was generally consistent with the Strategic Regional Policy Plan. Goal 11 and its associated policies encourage the conservation of natural resources and agricultural lands, and the use of existing and planned infrastructure. For the reasons stated previously, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Goal 12 and its associated policies encourage the retention of rural lands and agricultural economy. The CDMP encourages the retention of rural lands and agricultural economy. Because it was found that the Lowe’s Amendment was inconsistent with Policies LU-8F and LU-8G, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment was inconsistent with this regional goal and its policies. Goal 20 and its associated policies are to achieve development patterns that protect natural resources and guide development to areas where there are public facilities. Because it was found that there is no need for the Lowe’s Amendment and that it constitutes urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with these regional goal and policies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that: Ordinance No. 08-44, the Lowe’s Amendment, is not in compliance, and Ordinance No. 08-45, the Brown Amendment, is in compliance. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2009.
The Issue Whether the Florida Department of Transportation (FDOT) properly denied application(s) for an advertising sign permit.
Findings Of Fact On September 27, 2005, Petitioner Lamar submitted two permit applications (Nos. 55595 and 55596) to FDOT for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 85 (SR 85), 200 feet (or .042 miles) south of Barnes Road in Okaloosa County, Florida. SR 85 is a Federal-aid primary highway. (See Stipulated Facts 1 and 4.) The proposed sign structures met the size, height, and spacing requirements of Section 479.07, Florida Statutes. (See Stipulated Fact 3.) The proposed sign location is in an unincorporated area of Okaloosa County, Florida. (See Stipulated Fact 5.) Okaloosa County is the only local entity involved herein. The 42.5 acre parcel of land for the proposed billboard has significant frontage on SR 85, north of Crestview, Okaloosa County. A residence is located on a portion of the parcel. The permit application form used by Petitioner was composed and authorized by FDOT. Petitioner's submitted application was complete, and the appropriate fee was paid to FDOT. (See Stipulated Fact 2.) Upon request, FDOT provides a published "Instruction" pamphlet to assist applicants for outdoor advertising sign permits. Pages 12-13 thereof provide, in pertinent part, as follows: Land Use/Zoning: Outdoor advertising signs must be located in areas where the land use category allows properties which lie within 660 feet of the controlled road and which are within the contiguous land use designation area to be developed with primarily commercial or industrial uses. This information is found in the Land Development Regulations and on the Future Land Use Map of the City or County’s Comprehensive Growth Management Plan. The City or County or other local government must certify that the current zoning (Land Development Regulations) and the Future Land Use Map designation allow for commercial/industrial uses and that outdoor advertising signs are allowed for that designation. When the Land Development Regulations [zoning] or the Future Land Use Map do not specifically designate the parcel as commercial or industrial, but allow for multiple uses on the parcel, including commercial or industrial, a “use test” will be employed to determine whether an outdoor advertising permit may be issued. The use test requires that there be a minimum of three (3) conforming businesses within 1600 feet of each other, and that the sign be on the same side of the highway and within 800 feet of one of the businesses. The Department will not approve an outdoor advertising sign permit when local regulations prohibit outdoor advertising at the proposed location. (Emphasis supplied.) In preparation of Petitioner’s application(s), Chad Pickens, Petitioner’s Lease Manager, read FDOT’s Instruction pamphlet as guaranteeing Petitioner a “use test” if either the County land use map or the zoning for this parcel provided for mixed or multiple uses. He conducted extensive site location and ownership searches; made contacts with the potential lessor; submitted photographs of three businesses within 1600 feet of the proposed outdoor advertising sign location; filled out the permit application; proceeded to the appropriate Okaloosa County government officials for County approval; surveyed and staked out the proposed outdoor advertising sign location; and took photographs of the proposed site. He then submitted this information on FDOT-approved forms, along with a letter of authorization and the application fee. Petitioner Lamar leased the property site from the owner, with no lease payments due from Petitioner to the landowner unless FDOT approved its sign permits. At the time of the application, the three commercial businesses closest to the proposed sign location were: Dogwood Veterinary Clinic - approximately 118 feet south of the proposed sign site. This business specializes in treating house pets. The clinic makes no farm calls, but horses may be treated if brought into the clinic. This business also contains a retail outlet; Billy's Trade Store, approximately 463 feet south of the proposed sign site, is a convenience store; and Plantation Farms Pet Grooming, approximately 780 feet northeast of the proposed sign site. This business, in addition to retail sales of pet items and food, incorporates a section for the grooming and boarding of household pets. This business does not handle livestock. (See Stipulated Fact 9.) These three business establishments, submitted by Petitioner for FDOT’s application of a "use test," were businesses one could actually walk into and purchase goods or services. In addition to information regarding the proposed sign site, the proposed construction on the site, and where the proposed construction was to occur, the permit application required the applicant to secure Okaloosa County’s local certification of the proposed site’s future land use designation and its current zoning, which Petitioner did. Although FDOT requires that local government entities sign off on advertising sign applications to FDOT, the State Agency does not rubber stamp those approvals. Ultimately, FDOT administers State statutes and regulations in conjunction with its Federal agreement. The State is not bound by the County’s permitting of signs. In January, 1972, the State of Florida entered into an agreement with the Federal Highway Administration, in which the State agreed to implement and carry out the provisions of Section 131 of Title 23, United States Code (1965), commonly referred to as "The Highway Beautification Act." Through this agreement, Florida agreed to limit the permitting of outdoor advertising signs adjacent (within six hundred sixty feet of the nearest edge of right-of-way) to Interstate or Federal-aid primary highway systems, to areas which are zoned industrial or commercial or are located in unzoned commercial or industrial areas. Failure of FDOT to comply with the terms of this agreement could result in a loss of 10 percent of federal-aid highway funds. Lynn Holschuh, FDOT Outdoor Advertising Administrator, testified that since the January 1972, agreement with the Federal Department of Transportation, Florida local governments have been required to “zone” all property. Therefore, the 1972 Agreement’s use of the term, “unzoned commercial or industrial areas,” is an anachronism, because all Florida property should now be zoned. Still, the term remains in the Florida Statutes, and FDOT uses this term to grapple with areas where specific land use is not very well defined. Zoning designations arise from county land development regulations, i.e. zoning ordinances. Future land use designations come from a Land Use Plan, adopted by the local entity or entities, pursuant to Chapter 163, Florida Statutes, and placed on a future land use map. The proposed sign location is on a parcel with a land use designation of “Agricultural 1” (AA1). (See Stipulated Fact 6.) In other words, the parcel is zoned for agriculture. Okaloosa County Code 8.02.02 provides that permanent off-site outdoor advertising signs are a permitted use within agricultural areas. (See Stipulated Fact 7.) Counties may allow off-site advertising along county roads, but interstate and federal primary-aid highways, such as SR 85, are within FDOT’s jurisdiction. The applicable Future Land Use Map designates the proposed site for “rural mixed land use” (RMU). (See Stipulated Fact 8.) This multiple use future land use map designation includes residential and non-residential uses. Non-residential uses may include commercial or business uses, although the parcel being designated “rural” suggests otherwise. There is no evidence herein that the terms used in the current zoning or on the future land use map do not comport with the same or similar terms used in Chapter 163, Florida Statutes, or in 23 C.F.R. Section 750.703(a) or 750.708. At all times material, Billy Wayne Strickland, Florida Department of Transportation Outdoor Advertising Senior Agent, processed all outdoor advertising applications, statewide, on behalf of FDOT. He testified that if the current land development regulations (current zoning) and the future land use designation (future land use map) differ, FDOT considers both. If the current zoning and future land use map are both a "mixed use" designation, FDOT performs its own use test, sometimes delegated to an outside consultant. Ms. Holschuh testified that “agriculture” is a “rather specific” zoning term/designation. However, if a zoning category authorizes more than one use, FDOT looks at the current primary uses of the parcel. FDOT’s intent is not to go by the label that has been applied to the zoning category, but “to go beyond the label to determine whether or not the area really has the characteristics of a commercial or an industrial area,” and that with regard to the characteristics of commercial zoning, the use test would be employed to determine if there were bona fide commercial or industrial activities within the specified footage of a proposed sign location. In processing the application(s) in this case, Mr. Strickland accepted the future land use designation “AA1”, for “agricultural,” as certified by Planner Tim Durbin on behalf of Okaloosa County. He also researched Okaloosa County’s land development regulations, which described the permitted uses for property designated "agricultural." The Okaloosa County Land Development Code specifically designated three zoning categories as “Commercial.” They are “Business Retail,” Business General,” and “Business Tourism”. In the Code, commercially zoned areas, under the categories of "Business Retail" and "Business General," states: "[t]his is a Commercial (C) and Mixed Use Development (MU) Future Land Use Map Category." Under the category of "Business Tourism," the Code states: "[t]his is a High Density Residential (HDR), a Commercial (C), and a Mixed Use Development (MU) Future Land Use Map Category." Each of these business categories allows for traditional commercial uses such as retail stores, filling stations, banks, restaurants and mini- warehouses. The Okaloosa County Land Development Code specifically designated two zoning categories as “Industrial.” They are “Protected Industrial Districts” and “Airport Industrial Park Districts.” The Okaloosa County Land Development Code, under “Industrial” uses, has zoning categories of "Protected Industrial Districts" and "Airport Industrial Park Districts." The Code provides: "[t]his is an Industrial (I) Future Land Use Map Category." No similar reference to either “commercial” or “industrial” zoning is made under the zoning for “agricultural” areas. The agricultural zoning does not mention “filling stations.” The Okaloosa County Land Development Code lists the following (with some restrictions not material to these proceedings) in areas zoned “agricultural”: Permitted Principal Uses and Structures: -Dwellings -Commercial and non commercial agricultural [structures] -Sawmills -Places of worship, schools, publicly owned and operated community structures and land, nursing homes, charitable or philanthropic institutions; public or private golf courses; public lands; public or private cemeteries, private lodges and fraternal orders. -Privately operated day nurseries, pre- schools, and kindergartens. -Private airstrips -Private Airports -Public or private fishing clubs, and other similar enterprises. -Recreational areas for public use, campgrounds, travel trailer parks, including golf driving ranges, swimming pools, fishing lakes, and similar recreation uses. -Public or private stables -Commercial kennels and the raising of other small animals for sale -Community residential homes -Radio, television and commercial towers and antennas. -Terminals for petroleum products -Public Utility Structures -Municipal solid waste transfer stations and recycling facilities. Permitted Accessory Uses and Structures: Uses and structures which are customarily accessory and clearly incidental and subordinate to permitted or permissible uses and structures. Home Occupations. Special Exception Uses and Structures: Activities that are agricultural or support agricultural activities and are in keeping with the rural character of the area Public or privately operated gun clubs Borrow Pits Construction and Demolition Debris landfills Prohibited Uses and Structures: Any use or structure not of a character indicated under permitted accessory uses and structures, or permitted as a special exception. Class I, II and III landfills are prohibited, along with other types of solid waste disposal facilities except as identified in Permitted Uses and Special Exceptions. [Boldface in original; underlining supplied] Mr. Strickland opined that a terminal for storing petroleum products, transported to that location in tanker trucks, for use by machinery on a farm, which use is allowed by the County’s zoning code to be located on land zoned agricultural (see Finding of Fact 29), would not be the same as a gas/filling station for cars, permitted under the County’s commercial or industrial classification. Mr. Strickland’s interpretation is reasonable, and it was not credibly refuted by Mr. Durbin, the County’s planner, whose testimony that the County would allow a filling station on the parcel in question did not comport with the clear designations under the County’s zoning. (See Findings of Fact 24-29 and 35-36.) In processing the applications in this case, Mr. Strickland reasonably interpreted the current zoning to permit only commercial uses "tied to agriculture" on this parcel. Mr. Strickland also used the Okaloosa County Tax Appraiser’s records. The County Appraiser listed the parcel whereon the signs were intended to be erected as improved agricultural land containing a single family dwelling for which a homestead exemption was taken/granted. A residential use clearly is not a commercial use. Mr. Strickland took this to mean that the “rural mixed use” for that parcel implied a “residential” use, as opposed to a “non-residential” and potentially commercial use, under the RMU designation on the future land use map. FDOT never permits billboards on residential property unless the parcel is currently zoned commercial and the parcel merely contains a private residence that has been grandfathered- in. On October 18, 2005, FDOT, through Mr. Strickland, issued a Notice of Denied Application stating: Location is not permittable under land use designations of the site [s. 479.111(2), FS] Location does not qualify as unzoned commercial/industrial area [s. 479.01(23), FS] At the same time, FDOT returned Petitioner’s application fee checks. (See Stipulated Fact 10.) At hearing, County Planner, Tim Durbin, testified that based upon Okaloosa County’s current zoning and future land use, the proposed sign site met Okaloosa County standards and would support an outdoor advertising sign. He further testified that the County no longer considers "AA1”, which once referred to parcel size, "to have any significance,” and that the County plans, in the future, “to remove that designation from its Land Development Code.” According to Mr. Durbin, the County now considers all agricultural land to be "AA." However, as of the date of hearing, more than a year after the sign permit application review by FDOT, the County still has not changed its AA1 category. According to Mr. Durbin, Okaloosa County currently would permit the following non-residential uses of the parcel at issue: "small scale agricultural, civil uses of churches and houses of worship, public or private primary or secondary schools, small scale neighborhood commercial or business uses, general commercial uses. Small scale neighborhood commercial and business includes neighborhood-serving offices, neighborhood-serving retail activities.” He opined that any classification that contains “residential” and “non-residential” uses, as do both the AA1 zoning category and the land use map ”RMU-rural mixed uses” designation, may contain commercial projects within the “non-residential” areas. He equated “filling stations” with “terminals for petroleum products." Herein, because the zoning and land-use map designations were not identical, Mr. Strickland did not consider, in making his decision to deny the sign permit, the three businesses listed near the parcel. He did try to discover how the actual parcel in question was currently regarded locally. In doing so, he used reasonable methods. He denied the sign application(s) on the basis of the future land use designation (rural mixed use-residential) and the agricultural zoning current when these applications were submitted and considered between September 27, 2005, and October 18, 2005, (AA1-agricultural). Petitioner has not demonstrated that any change in the zoning or land use designation has occurred since that time. However, when asked at hearing how he would consider those three nearby businesses (a veterinary, a convenience store, and a pet groomer), which had been submitted for a use test, Mr. Strickland testified that he would consider the veterinary and the store to be commercial uses and would consider Plantation Farm Pet Grooming to be not commercial because it contained a family residence with a homestead exemption. Petitioner did not refute that the pet groomer’s building primarily constitutes a residential use.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying the October 18, 2005, denial of sign application. DONE AND ENTERED this 4th day of April, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2007.
The Issue The issue presented for decision in this proceeding is whether a future land use map (“FLUM”) amendment, adopted by Hillsborough County on October 27, 1994, as part of its Comprehensive Plan update for the planning time frame through 2015 (variously referred to as the “Comprehensive Plan” or "CPU-2015"), that changed the future land use category on a 253 acre parcel1 in Northwest Hillsborough County ("the Geraci Parcel") from Regional Commercial ("RC") to Community Mixed Use-12 ("CMU-12") complies with the requirements of Chapter 163, Part II, Florida Statutes, as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioners Nick and Peter Geraci are the fee simple owners of a parcel of land comprising approximately 450 acres located on the northeast corner of the intersection of North Dale Mabry Highway and Van Dyke Road, two hundred fifty-three (253) acres of which are at issue in this proceeding. Advance Leasing is a Florida corporation that was a contract vendee for a portion of the Geracis’ property intended for development as a “super regional” or “regional scale” mall, and was the applicant in the amended applications for DRI approval of that mall. Hillsborough County’s motion to dismiss Advance Leasing as a party for failure to establish standing as an affected person under Section 163.3184(1)(a), Florida Statutes, was granted at the final hearing. Advance Leasing failed to establish that it was an entity that either owned or operated a business within Hillsborough County or owned property in Hillsborough County as of October 27, 1994. Respondent DCA is the state land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes, pursuant to Sections 163.3184, 163.3187 and 163.3189, Florida Statutes, and to determine compliance with the relevant provisions. Respondent Hillsborough County is a local government with responsibility to prepare and adopt a Comprehensive Plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171 and 163.3174, Florida Statutes. The Hillsborough County Board of County Commissioners makes the final, legislative decision on all Comprehensive Plan amendments in Hillsborough County. Hillsborough County Charter Section 9.09 specifies that a single local planning agency, created by special law, "shall have responsibility for Comprehensive Planning and related activities[.]" The Hillsborough County Local Government Comprehensive Planning Act, as amended by Chapter 97-351, Laws of Florida, designates the Hillsborough County City-County Planning Commission ("Planning Commission”) as Hillsborough County's local planning agency. The Planning Commission is charged with preparing Comprehensive Plans and making recommendations to the public bodies for Hillsborough County and the incorporated municipalities within Hillsborough County. The role of the Planning Commission is advisory and its recommendations are not binding upon Hillsborough County. Intervenors Sierra Club and Dr. Richard and Bonnie Hoffman have established their standing to participate in this proceeding as "affected persons" pursuant to Section 163.3184(1)(a), Florida Statutes. Sierra Club represents numerous members who reside in Hillsborough County, and also operates a business within the boundaries of Hillsborough County by way of its local affiliate. The Hoffmans own property within Hillsborough County. Both Sierra Club and the Hoffmans participated in the local government proceedings in accordance with Section 163.3184(1)(a), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Administration Commission enter a final order finding the portion of CPU-2015 challenged by the Petition to be in compliance. DONE AND ENTERED this 14th day of October, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1998.
Findings Of Fact The Parties Coniglio through a profit sharing plan owns property in Sumter County which is affected by the plan adoption at issue here. He submitted written and oral comments, objections and recommendations during the plan review and adoption proceedings. He is a person affected by the plan adoption. Similarly Pownall, Cherry, Jones, the Turners and the Dixons as property owners and individuals who submitted written and oral comments, objections and recommendations during the plan review and adoption proceedings are affected persons. Moreover, Pownall, Cherry, Jones and Turner reside in Sumter County. The Dixons own and operate mining sites within Sumter County. Their residence and business interests in Sumter County create additional bases for determining that those individuals are affected persons. The department is the state land planning agency which has the responsibility of reviewing comprehensive plans in accordance with Chapter 163, Part II, Florida Statutes. That function was performed on this occasion associated with the comprehensive plan submitted by the county. The county is a local government required to adopt a comprehensive plan in accordance with Chapter 163, Part II, Florida Statutes. This county is a non-coastal county located in central Florida which is bordered by Citrus, Hernando, and Pasco counties to its west, Polk county to the south, Marion county to the north and Lake county to the east. It has within its boundaries five incorporated municipalities, Bushnell, Center Hill, Coleman, Webster and Wildwood. The unincorporated area of the county include approximately 350,000 acres. The 1991 unincorporated population of the county was 25,030 and was projected to increase to 30,773 within the ten-year planning horizon contemplated by the plan, in the year 2001. Plan Preparation, Adoption and Approval On March 27, 1991, the county submitted its proposed plan to the department for review as contemplated by Section 163.3184(3)(a), Florida Statutes. By such submission the county did not commit itself to the terms found within the proposed plan. Chapter 163, Part II, contemplates that the text within the proposed plan may change through the review, adoption and approval process that follows that submission. As anticipated by Section 163.3184(4), Florida Statutes, the department forwarded copies of the proposed plan to other agencies for review. The department in accordance with Section 163.3184(6), Florida Statutes, took into account the comments received from the other governmental agencies and prepared and transmitted its report of written objections, recommendations and comments (the ORC). The transmittal date for the ORC was July 2, 1991. The purpose of the ORC was to acquaint the county in detail concerning the department's objections, recommendations and comments. It was left over to the county to decide whether the suggested modifications recommended by the department would be adopted in an effort at establishing a plan which would be found "in compliance". The county considered the ORC report, to include the recommendations and made revisions to the text in the proposed plan when it adopted its plan on February 3, 1992. The adopted plan was transmitted to the department on February 28, 1992, for final review. In preparing and adopting the plan the county gave appropriate notice and provided the opportunity for public participation envisioned by law. On March 31, 1992, the department's secretary determined that the adopted plan met the requirements set forth in Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. Thus, the plan was found "in compliance". The determination finding the plan "in compliance" was memorialized through a memorandum dated March 24, 1992. On April 9, 1992, the department gave notice of its intent to find the plan "in compliance". The Coniglio Petition The Coniglio profit sharing plan owns 19.44 acres in Sumter County which Coniglio claims should be classified on the future land use map to the plan as industrial property not commercial property as the plan now describes. In particular, Coniglio asserts that the 19.44 acres that were designated as commercial was not by a decision based upon a survey, studies or data concerning that parcel and that the designation as commercial is inconsistent with the character of other parcels found within the immediate area. Coniglio argues that the analysis that was performed in classifying the property for designation in the future land use map has resulted in a land use which does not allow the best use or highest economic use of the subject property. This 19.44 acres is depicted on map VII-19 and is located to the north and east of the City of Wildwood. There is commercial acreage in the plan immediately adjacent to the property in question, all of which is part of a triangular shaped piece of land. There are present commercial uses adjacent to the property. Generally, the triangular shaped property, to include the 19.44 acres, is surrounded by other properties whose classification is municipal, industrial and rural residential. The property is further detailed in a sketch which is Respondent's Exhibit No. 1 and a Joint Exhibit No. 2. The property is south of County Road 462, west of the Seaboard Coastline Railroad line and east of U.S. 301. The southern boundary of the property is adjacent to an overpass which is 40 to 45 feet high. Coniglio's property has its longest axis fronting the railroad, contact with County Road 462 but no immediate contact with U.S. 301. The railroad line which is adjacent to the parcel is a principal track for the Seaboard Coastline Railroad carrying north/south traffic between Jacksonville and Tampa and Jacksonville and Orlando. The track splits in the City of Wildwood with some traffic going to Tampa and some traffic going to Orlando. A manufacturing plant is located east of the railroad in the vicinity where the subject property is found. This plant is Florida Corrugated which makes corrugated boxes. West of U.S. 301 in the vicinity of the property in question is found a company known as AST that manufactures steel pipes. In the vicinity of the property in question at the junction of County Road 462 and U.S. 301 a business is located known as McCormick Electric. In the immediate vicinity of the property is also found a convenience store and what previously was a motel that has been turned into rental units. Northeast of the intersection of County Road 462 and the railroad is property owned by Florida Power Corporation which is classified as industrial. The corrugated box plant is also on property classified as industrial, again referring to classifications in the future land use map. The AST property where stainless steel pipes are manufactured is on a parcel which is classified as industrial on the future land use map. As stated, the parcel in question is part of a larger triangular shaped parcel, that had been the topic for establishing an industrial park. In the proposed plan the subject parcel, a part of the larger parcel, had been classified as industrial. That designation of the parcel in the proposed plan was through the future land use map. Arrangements were made to provide water service to the industrial park. At present that service is available at the property in question. Arrangements, though not consummated, have also been made to extend sewer service from the City of Wildwood to the subject parcel. In anticipation of the use of the subject property under an industrial classification, Coniglio expended large sums of money. That included $85,000 for a railroad spur and in addition; $12,000 for track extensions, $8,500 for a water line and contribution of right-of-way for water service, sewer service and a road. All this effort was made by Coniglio's in the anticipation of the opening of the industrial park. Sumter County had been involved in the industrial park project through the process of an application to the Florida Department of Commerce seeking appropriation of $96,000 to construct a road associated with the industrial park. The county administered construction of the road and it is that road which Coniglio had donated right-of-way for. The railroad spur, water and sewer services would serve parcels other than the subject parcel owned by Coniglio. The county in preparing its proposed plan had worked with the Sumter County Development Council and other persons in the community in establishing the location for commercial and industrial classifications. One reason for designating the parcel in question as industrial was based upon its proximity to the railroad and as part of the overall industrial park which was being projected in the planning efforts by the county, the development council and others. Chemical Development Corporation appeared before the Sumter County Board of Adjustments to seek approval to operate its business of storage and treatment of hazardous waste on the subject property. The need to appear before the Sumter County Board of Adjustments, which operates independent of Sumter County and its governing board, the Sumter County Commissioners, was to gain a special exception to operate that type business in the county. A special exception needed to be granted by the Sumter County Board of Adjustments because the business to be engaged in involved hazardous waste. The decision by the Sumter County Board of Adjustments was upon a vote of 8 to 2 to grant the special exception following visitation to a plant similar to those activities the applicant for special exception hoped to be engaged in. That approval was granted in May, 1991 by the Sumter County Board of Adjustments. Following that approval the plan was adopted on February 3, 1992, and it changed the classification from industrial in the proposed plan to commercial in the adopted plan. Chemical Development Corporation the prospective tenant for the parcel in question was not granted an occupational license by the county and could not proceed with its operations. One of the enterprises that located in the proposed industrial park was Dairyman's Supply. It had completed construction and was ready for business before the plan was adopted. It began its operations in July, 1991. The decision to change the designation in the parcel in question from industrial to commercial was upon the recommendation of Glen Nelson, Director of Public Services for Sumter County. Among other reasons for the change, according to Nelson, was to thwart the purposes of Chemical Development Corporation in recognition that the change in classification from industrial to commercial would prohibit activities by that company. Notwithstanding the decision by the Sumter County Board of Adjustments to grant the special exception, that prohibition existed because industrial zoning was necessary for the would be tenant to proceed with its business at the site in question. By way of history, following the decision by the Sumter County Board of Adjustments to grant the special exception there was some opposition to the activities envisioned by the Chemical Development Corporation. That is to say, the establishment of a hazardous waste treatment facility. This community opposition predated the recommendation by Mr. Nelson, the decision by the Sumter County Commissioners to reject the application for an occupational license issued from the county, and the determination to present the subject parcel on the future land use map in the adopted plan as a commercial classification. The principal planner whom the county relied upon in preparing its plan was Jack Sullivan. He did not participate in the decision to change the subject parcel from industrial to commercial as reflected on the future land use map in the adopted plan. As explained by Mr. Nelson, other reasons for changing the plan related to the overall attempt by the county to meet perceived needs for balancing the amount of commercial and industrial acres within its adopted plan. To that end the March, 1991, proposed plan had contained approximately 200 acres on State Road 44 east of Wildwood designated as commercial that had been put there at the request of the Sumter County Development Council based upon the Council's discussions with a company that was considering the establishment of a distribution center. Between the time the proposed plan had been transmitted and the plan adoption took place the potential project located in Pasco County or some county south of Sumter County. Therefore, as stated by Mr. Nelson, the commercial designation was no longer needed. The commercial designation at that site changed to rural residential in the plan as adopted. To compensate for the loss of commercial on that 200 acres Mr. Nelson requested that an approximately 40 acre tract of land adjacent to Wildwood on the east side of State Road 44 be placed in the adopted plan as commercial together with 30 to 35 acres including the subject parcel. In making his recommendation to place the subject parcel as commercial Mr. Nelson was aware of those industrial activities in the general area surrounding the parcel in question that have been described. Mr. Nelson made his recommendation for change in the classification one or two months before the February 3, 1992 plan adoption. At the plan adoption hearing on February 3, 1992, Mr. Nelson indicated that the reason for changing the classification for the subject parcel was that the existing uses there were commercial and that the future land use map should reflect that reality. At the hearing no mention was made, by the provision of details, that the reason for changing was to compensate for the loss of the aforementioned 200 acres of commercial acres between the time of the proposed plan and the adoption of the plan on February 3, 1992. As Mr. Nelson explains, the action by the Sumter County Board of Adjustments in granting a special use exception to Chemical Development Corporation did not preclude the necessity to acquire the proper zoning on the parcel before proceeding with the business. That zoning had to be industrial and not commercial. In the more ordinary course the industrial zoning would have been sought first before the Sumter County Commissioners and the Sumter County Board of Adjustments would then have considered the special use. In this instance the Board of Adjustments acted first and the county made its determination second. Bill Keedy who sells industrial real estate expressed the opinion that the 19.44 acres would not be saleable as commercial real estate at least in the foreseeable future. Jim Morton who sells commercial, residential and agricultural properties expressed the opinion that the parcel in question has limited commercial value. Willard Peeples who owns a number of commercial rental properties did not believe that the subject property had commercial value due to limited access to road frontage. None of these individuals are certified in real estate appraisal. Mr. Keedy pointed out that the majority of commercial activity in the Wildwood area is in the middle of the town. Mr. Peeples observed that the commercial activity in Wildwood was located south of the city hall and on U.S. 301 and east and west on State Road 44. Mr. Morton expressed the belief that the highest and best use of the subject property was industrial. Mr. Keedy expressed the belief that an industrial use was promoted by the fact that the property on its east side was bordered by the railroad track. Mr. Nelson in making his recommendation to classify the property in question as commercial made that choice outside any experience in selling, owning or dealing in commercial property. There had been no commercial development north of the City Hall in Wildwood in the preceding ten years prior to hearing. Tony Arrant is an expert in land use planning employed by the department. He had significant involvement in the plan review performed by the department. He pointed out that the department's concerns about the plan and its land use classifications were based upon distribution of land uses throughout the entire county. The ORC did not offer objections to classification of any particular parcel. In the ORC there had been objection as to the extent and distribution of land uses based upon the belief that inadequate data and analysis had been provided to support the extent and distribution of land use. Moreover, the ORC found the plan in its proposed form deferred the establishment of densities and intensities for some land use categories within the plan. The ORC expressed concern about data and analysis supporting the future land use map. Therefore, objection was directed to the future land use map. However, the impression of the proposed plan was not based upon a policy to avoid commenting on specific parcels when occasion arose for such criticism. Mr. Arrant did not perceive that a change in classification of land use between the time that the proposed plan was reviewed by the department and the adoption of a plan was an irregular outcome. In fact, that possibility is a normal expectation. Mr. Arrant recalls the explanation by Mr. Nelson on February 3, 1992, when the plan was adopted concerning the change from the proposed plan to the adopted plan affecting the parcel in question, to have been based upon existing circumstances, existing land uses at that place and a movement in the distribution of parcels in the overall county associated with commercial and industrial classifications. Mr. Arrant pointed out, in the final perception he held about the adopted plan, that if the suitability analysis provided would support a commercial classification, that is to say, that it was equally suitable for commercial development or industrial development and there was data and analysis providing the need and extent of distribution for the classification, then it is the local government's choice to determine which site will be designated commercial and which site will be designated industrial. With that in mind, Mr. Arrant found no reason to take issue with the county in its commercial classification for the subject parcel. Mr. Arrant in his knowledge of the parcel in question found no wildlife habitat, wetlands, topographical, geographical or geophysical constraints which would limit the use of this property as commercial or industrial. Consequently, the choice in classification was left to the local government. Having in mind the facts previously found, it is recognized that the reasons for changing the land use classification on the subject parcel from industrial to commercial had a political component, stopping Chemical Development Corporation from doing business in Sumter County, unrelated to appropriate land use planning. Nonetheless other reasons the county gave for changing the classification from industrial to commercial when compared to the criticisms directed to the classification do not convince, to the exclusion of fair debate, that the county should be required to change the plan to reflect an industrial classification for the parcel in question. This finding is supported by review directed to the overall plan for land use classification within the county which is supported by appropriate data and analysis. Finally, Coniglio's expenditures associated with this parcel are not an appropriate topic for disposition in this case. Mining Policy 1.9.1 at pages VII-48 and 49 states the following in its preamble: Mining uses shall be provided for in areas designated as agricultural on the Future Land Use Map and shall be permitted upon approval of a conditional use permit and approval of an operating permit pursuant to a mining site plan as provided for in the Land Development Regulations. It was not proven to the exclusion of fair debate, in fact, no proof was offered to suggest that the approval of a conditional use permit as opposed to a zoning permit should be the proper approach in describing this policy. Consequently, that allegation concerning the county's policy choice in the mining element is without merit. Policy 1.9.1 at page VII-49 goes on to describe the guidelines for controlling land allocation for mining purposes where it states: The following guidelines shall be used to control land allocation for mining: Allocation of mining land use shall be based on a projected average need of 100 acres per year or a total of 1,000 acres during the ten year time period of the Plan and may be permitted pursuant to the goals, objectives and policies of the Plan as needed up to 1,000 acres. Allocation of mining land use above this projected need shall require a Plan amendment. For purposes of determining the amount of mining land permitted, the Board of County Commissioners shall issue a finding with each operating permit that clearly delineates the amount of land dedicated to the actual mined area plus ancillary uses such as processing plants, overburden piles, roads, administrative offices and other buildings necessary for the actual mining of land. Areas allocated for wetlands, buffers and other lands required in the application to insure compatibility with adjacent land uses or protection of resources shall not be counted toward the ten-year allocation of land for mining purposes. To ensure that an equitable balance among applicants is maintained in allocation of mining land, the following criteria shall apply: Within each calendar year, no individual mining operation shall receive more than 10% of the ten year allocation; No individual mining operation shall receive more than 25% of the ten year allocation within any five year period; Any land allocation requirement for mining purposes larger than those indicated in 1-2 above shall require a plan amendment. The calculation concerning the number of acres per year and total acreage allocated during the ten year review is based upon data collected from the Withlacoochee Regional Planning Council field survey of 1975 incorporated into the county's 1976 comprehensive plan which showed 2190 acres in mining effective 1975. That constitutes the base point for calculation and is related to a further data point in 1986 taken from the county tax assessor's data which established that 3082 mining acres existed in the county upon that date. The use of the data points is described in the data and analysis at page VII-104 where it states: The 1991 acreage was assumed to be the same as the 1986 analysis. The following methodology was used to calculate mining growth to the year 2001: Assume an additional 100 acres per year from 1986-2001 including buffer area. This estimate is based on 2,190 acres in mining in 1976 (1976 Comprehensive Plan) and 3,082 acres in 1986 (See Appendix A). This yields an average of 89 acres per year for the ten year period. This has been rounded upward to 100 acres per year to allow for market fluctuations. Mining shall be a permitted activity in agriculture districts. Applicants shall secure a conditional use permit to mine in agriculture areas; then a mining operating permit will be secured to delineate the exact location of the mined area. 100 acres/year X 15 years = 1,500 acres. 3. 3,082 + 1,500 = 4,582 acres mining in 2001. The goals and policies concerning allocation of mining acreage is clearly based upon appropriate data. The methodology utilized for data collection was appropriately applied and the use of the methodology to derive the allocation was a professionally acceptable methodology. The Petitioners challenge to the county's treatment of the future land use element related to mining would substitute a methodology which examines the amount of land devoted specifically to the mining activity as contrasted with the methodology here which takes into account the mined areas plus ancillary uses such as processing plants, overburden piles, roads, administrative offices and other buildings. In addition, the methodology that the challengers would employ does not take into account that the 100 acre per year allocation excludes wetlands, buffers, and other land required to ensure compatibility with adjacent land uses and protection of resources. This attempt at comparison of methodologies is not allowed in the compliance review. In criticizing the data supporting the allocation process, the challengers question whether that data is the best available existing data. They have failed to prove beyond fair debate that the data used in the plan element is not the best available existing data. The decision to exclude areas allocated for wetlands, buffers and other lands required to ensure compatibility with adjacent land uses and to protect resources from the mining acreage count is not part of the allocation methodology. It is an appropriate planning decision in protecting wetlands and other resources and ensuring compatibility with adjacent land uses. In further describing the manner in which the county will ensure compatibility of the mining uses with adjacent land uses and the preservation of natural resources, Policy 1.9.2 at page VII-49 states: Sumter County shall insure compatibility of mining uses with adjacent land uses and preservation of natural resources through the following requirements: Sumter County shall regulate mining to control buffer areas, maintenance of the mining area, groundwater withdrawals, unpermitted deposition of materials, soil stabilization, disturbance of wetlands, noise, vibration, air quality, security and reclamation of mined lands pursuant to Sumter County Ordinance 90-12(1990). Blasting shall be regulated pursuant to Sumter County Ordinance 81-11(1981). All mining lands permitted pursuant to these policies must be adjacent to existing legally permitted mine sites with no intervening non-compatible uses. Lands proposed for mining that are not adjacent to an existing permitted mine site shall require a plan amendment prior to approval of zoning and the mining plan. Enforcement of mining regulations shall be funded through operating permit fees levied against mining operators. The Petitioners challenging the mining element take issue with the term "adjacent" found at Policy 1.9.2c. They note that Sumter County Ordinance No. 90-12(1990), the mining ordinance, uses the term "contiguous". They argue that this difference in terminology between the ordinance and the plan describes an inconsistency between that ordinance and the plan. Moreover, the challengers claim that there is an internal inconsistency between Policy 1.9.2 and Policy within the conservation element. Policy 1.7.1 in the conservation element at pages III-13 and 14 states: Sumter County shall insure compatibility of mining uses with adjacent land uses and preservation of natural resources through the following requirements: Sumter County shall regulate mining activities to control buffer areas, maintenance of the mining area, groundwater withdrawals, unpermitted deposition of materials, soil stabilization, disturbance of wetlands, noise, vibration, air quality, security and reclamation of mined lands pursuant to Sumter County Ordinance 90-12 (1990). Blasting shall be regulated pursuant to Sumter County Ordinance 81-11 (1981). All mining lands permitted pursuant to these policies must be adjacent to existing legally permitted mine sites with no intervening non-compatible uses. Lands proposed for mining that are not contiguous to an existing permitted mine site shall require a plan amendment prior to approval of zoning and the mining plan. Enforcement of mining regulations shall be funded through operating permit fees levied against mining operators. The challengers claim that Policy 1.9.2 is inconsistent with the Land Development Code for Sumter County, Chapter 13 as it discusses mining activities. Finally, the challengers take issue with the decision to change policy 1.9.2 in its use of the word "contiguous" in a plan draft and the final decision to use the word "adjacent". In Webster's New World Dictionary the word "adjacent" is defined as: near or close to something; adjoining, joining. "Contiguous" is defined as: 1. in physical contact; touching. 2. near; adjoining. To the extent that the county chose to change the previous terminology in policy 1.9.2 found within the earlier draft from the word "contiguous" to the word "adjacent" in the adopted plan, there is no impropriety in that choice. Such changes are anticipated as being involved in the process. The plan as adopted in its use of the terminology "contiguous" or "adjacent" in the conservation and future land use elements as they discuss mining activities is not an internal inconsistency. The terms adjacent and contiguous taken in context are the same. The use of those terms affords no greater nor lesser protection for the benefit of adjacent land owners or in the protection of resources. Treatment of the mining issue within Sumter County Ordinance 90-12 and the Land Development Code for Sumter County, Chapter 13, when compared to the plan does not point to some inconsistency in using the terms "contiguous" and "adjacent". On balance the treatment afforded the mining element within the plan has adequately responded to the need for proper allocation for future land use compatible with adjacent land uses and the protection of resources.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which finds the plan for Sumter County to be "in compliance" and dismisses the petitions. DONE and ENTERED this 26th day of February, 1993, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1993. APPENDIX CASE NO. 92-2683GM The following discussion is given concerning the proposed fact finding of the parties: Coniglio: The proposed facts are accepted with the exception that Paragraph 4 is contrary to facts found. and Paragraph (w) is not necessary to the resolution of the dispute. Department: Paragraphs 1-12 are subordinate to facts found. Paragraph 13 is contrary to the facts in its suggestion that there is a lack of significant industrial activity in the area of the subject parcel. Otherwise, that paragraph is subordinate to facts found. Paragraphs 14 through 18 are subordinate to facts found with the exception that the latter sentence in Paragraph 18 is not accepted in its suggestion that the allegation of political considerations has not been proven. Paragraphs 19 and 20 constitute legal argument. Paragraphs 21 through 23 are subordinate to facts found. Paragraphs 24 through 27 are subordinate to facts found. Paragraphs 28 and 29 constitute conclusions of law. Paragraphs 30 and 31 are subordinate to facts found. Paragraphs 32 and 33 constitute conclusions of law. Paragraph 34 is subordinate to facts found. Paragraph 35 constitutes conclusions of law. Paragraphs 36 through 40 are subordinate to facts found. Paragraph 41 is not necessary to the resolution of the dispute. Paragraph 42 is subordinate to facts found. Pownall, Cherry, Jones and Turner: Paragraph 1 is contrary to facts found in its suggestion that appropriate notice and opportunity for public participation was not afforded. Paragraph 2 through 4 are contrary to facts found. The County and Intervenors: Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 constitutes conclusions of law. Paragraphs 9 through 13 are subordinate to facts found. Paragraphs 14 and 15 constitute conclusions of law. Paragraphs 17 through 22 are subordinate to facts found. Paragraph 23 constitutes conclusions of law. Paragraphs 24 and 25 are subordinate to facts found. Paragraph 26 constitutes conclusions of law. Paragraphs 27 through 31 are subordinate to facts found. Paragraphs 32 and 33 constitute conclusions of law. Paragraphs 34 through 39 are subordinate to facts found. COPIES FURNISHED: Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. John Coniglio, Esquire P. O. Box 1119 Wildwood, Florida 34785 Bill Pownall 202 W. Noble Street Bushnell, Florida 33513 Randall N. Thornton, Esquire P. O. Box 58 Lake Panasoffkee, Florida 33538 Theodore R. Turner Nancy Turner Carousel Farms Route 1 Box 66T Post Office Box 1745 Bushnell, Florida 33513 Frances J. Cherry 3404 C R 656 Webster, Florida 33597 Kenneth L. Jones 3404 CR 656 Webster, Florida 33597 Steven J. Richey, Esquire P.O. Box 492460 Leesburg, Florida 34749-2460 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513 Randal M. Thornton, Esquire Post Office Box 58 Lake Pnasoffkee, Florida 33538 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue Whether the FLP is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact Background Miami Corporation, the applicant for the Volusia County Farmton Local Plan, owns two contiguous and sizable tracts of land in Brevard County and Volusia County. Together they comprise the company's Farmton property (the "Farmton Site"). The portion of the Farmton Site in Brevard County is approximately 11,000 acres. The portion in Volusia County is approximately 47,000 acres. Miami Corporation has owned the property since the 1920's. It began silviculture operations onsite in 1952. The Farmton Site continues today to be used mainly for silviculture. In 2003, Miami Corporation began exploring long-term options for alternative uses. One option was bulk sales of large lot tracts, such as 100-acre tracts, to developers to build homes on the lots. Another option was a comprehensive plan amendment applying "smart growth" principles. The company opted for the latter approach. The smart growth comprehensive plan amendment eventually pursued included the creation of a regional wildlife corridor that extends from the headwaters of the St. Johns River to the Ocala National Forest. Before filing the application for the Original Amendment, Miami Corporation organized meetings of private and public stakeholders to gain input. Representatives from Brevard and Volusia Counties, affected municipalities, the Florida Fish and Wildlife Conservation Commission ("FFWCC"), St. Johns River Water Management District ("SJRWMD"), East Central Florida Regional Planning Council ("ECFRPC"), and conservation organizations participated. After the application of Miami Corporation was filed, the County convened a Peer Review Panel. Chaired by two former Department Secretaries, the panel included nine experts in planning and natural resources fields. The panel made various recommendations that were incorporated into the Farmton Local Plan. Specific recommendations included the creation of a Community Stewardship Organization to protect the most sensitive natural resources. Florida Audubon made additional recommendations to strengthen the conservation measures consistent with mechanisms that experience in other areas of the state had taught Audubon were necessary to achieve conservation measures protective of the area's natural resources that would be perpetual. Due to the scale of the proposed amendment, the County hired an outside transportation engineering firm to review the Farmton Local Plan. In addition, the local plan's natural resource mapping and policies were subjected to two other peer reviews convened by the ECFRPC and University of Florida GeoPlan Center. These reviews included the participation of resource agencies, conservation organizations, and scientists. The County worked closely with Miami Corporation in revising the substantive content of the Farmton Local Plan through over 30 iterations to incorporate recommendations from the peer review process, the Volusia County Growth Management Commission, various County divisions, local governments, state agencies, and conservation organizations. The Brevard County Portion of the Farmton Site The Brevard County portion of the Farmton Site is immediately adjacent to the Volusia County portion of the site. Brevard County adopted an amendment to its comprehensive plan regarding the portion of the Farmton Site in Brevard County. The amendment allows urban development. The amendment was challenged followed by a settlement of the case through the adoption of a remedial amendment. Subsequent to the filing of Case No. 10-2419, the amendment and the remedial amendment to the Brevard County Comprehensive Plan led to a determination that the Brevard Farmton amendments were in compliance. The amendment as remediated became effective with no further challenges. The effectiveness of the amendment to the Brevard County Comprehensive Plan which allows urban-type development was one of several significant events that took place between the 2010 Hearing and the 2011 Hearing. Significant Events Following the filing of proposed recommended orders in Case No. 10-2419, the Department, the County, VGMC, and Miami Corporation moved that the case be placed in abeyance so that settlement discussion could take place. The motion was granted over the objections of the Petitioners in Case No. 10-2419. The settlement discussions led to the Remedial Amendments adopted by the County in April 2011. The Original Amendments and the Remedial Amendments (the "FLP") were determined by the Department to be in compliance. The "in compliance" determination was challenged in a petition filed at the Department on May 16, 2011, by the Petitioners in Case No. 11-2527. The petition was forwarded to DOAH and the case was consolidated with Case No. 10-2419. In the meantime, the Florida Legislature passed chapter 2011-39, Laws of Florida (the "New Law"). The New Law substantially amends chapter 163, including the definition of "in compliance" in section 163.3184(1)(b). It took effect on May 17, 2011, when it was approved by the Governor and filed with the Secretary of State's office. The New Law was determined to be fully applicable to the consolidated cases. Prior to the Brevard County amendments taking effect, the Department regarded the Volusia portion of the Farmton Site as isolated and removed from other urban areas. Once the Brevard County Comprehensive amendments allowing urban development were determined to be in compliance and became effective, the Volusia portion of the Farmton Site became adjacent to "an urban area that is its match to the south." Petitioners' Ex. 6, Deposition of Michael McDaniel, at 14. The effectiveness of the Brevard County plan amendments that place an urban area adjacent to the Volusia Farmton Site was significant to the Department in its determination in 2011 that the FLP is in compliance. The Volusia Farmton Site The FLP applies to 46,597 acres in southern Volusia County. The Volusia Farmton Site is rural and much of it is classified as wetlands. No services or public facilities currently exist on the site. It contains abundant habitat for both upland and wetland dependent species. Within the site there are several outparcels owned by other persons or entities on which low density residential development is allowed by the Volusia County Comprehensive Plan. More significant to the issues in this proceeding, the Comprehensive Plan allows low density residential development on the remainder of the site as well. The site includes approximately 260 miles of dirt roads that are maintained by Miami Corporation. In good condition, the roads are acceptable for ordinary passenger cars. The Current Plan Prior to the adoption of the FLP by the Original Amendment, the Volusia County Comprehensive Plan adopted in 1990 had been updated twice through the Evaluation and Appraisal Process. The first update occurred in 1998 and the second in 2007. (The updated plan was referred to in hearing as the "Current Plan" and was admitted into evidence as Joint Ex. 1.) The intent of the updates "is to take into account changes to state law and to reflect changing conditions within the community." Joint Ex. 1, Introduction, page 3 of 5. Chapters 1 through 18 of the Current Plan contain elements and sub-elements "which are the basic building blocks of the Plan." Id. There are eleven required elements, the first of which is the Future Land Use Element (the "FLUE"). FLUE Overview Section A. of Chapter 1 of the Current Plan entitled, "Overview," states the following: The Future Land Use Element . . . ensures that physical expansion of the urban areas are managed (1) at a rate to support projected population and economic growth; (2) in a contiguous pattern centered around existing urban areas; and (3) in locations which optimize efficiency in public service delivery and conservation of valuable natural resources. * * * [W]hile it reflects existing urban services capacities and constraints, it also establishes locations where future service improvements will follow. It also reflects and promotes . . . activity in the private land market. * * * New urban growth, predicated on appropriate population projections, environmental suitability, and fiscal feasibility will be encouraged adjacent to the major cities that have a full range of urban services or inside County service areas. County service areas may include undeveloped land inside or near existing unincorporated urban areas where the developer agrees to provide necessary urban services through private means. * * * Regarding public systems, the major assumption is that the area adjacent to existing public infrastructure will be the primary areas for future infrastructure extension. Expansion of existing facilities in a fiscally and environmentally appropriate manner will be the primary option. The intent of this concept is to maximize efficiency of urban services through compact development otherwise consistent with the Volusia County Comprehensive Plan. Planned developments include large scale, mixed-use, integrated, compact and distinct urban developments under Chapter 380, Florida Statutes. * * * [A]reas that are outside the proposed development areas or contain environmentally sensitive features will receive special attention to ensure proper management of the County's natural resources. In order to further protect the County's natural resources and promote sustainability, the following will be included in the County mission statement: To balance development and the environment through innovative practices that lessen the impact of the development while preserving natural resources and improving the quality of life for present and future generations. Joint Ex. 1, Chapter 1, pages 2-3 of 109 (emphasis added). Future Land Use Overlays and Designations Future land use overlays and designations are part of the adopted Future Land Use Policies. Id. at page 4 of 109. The entire Volusia Farmton Site is located within the Comprehensive Plan's overlay area of Natural Resources Management Area ("NRMA"). Approximately 11,000 acres of the site lie within the Environmental Core Overlay ("ECO"). There are three land uses on the Volusia Farmton Site under the Current Plan: Forestry Resources ("FR"), 22,294 acres (approximately); Environmental Systems Corridor ("ESC"), 22,344 acres (approximately); and Agricultural Resources ("AR"), 2,309 acres (approximately). Residential densities on the Farmton Site are different for the three land uses allowed on site but all are "low-density" and all have the same floor area ratio ("FAR"): 0.10. The AR land use allows a maximum residential density of one unit per ten acres. The FR land use allows a maximum residential density of one unit per twenty acres or one unit per five acres with clustering. The ESC land use allows a maximum residential density of one unit per 25 acres. The Current Plan would allow 4,692 residential units: 228 in AR; 706 in ESC; and 3,758 in FR. The land designated AR would allow 100,580 square feet of nonresidential development and the land designated FR would allow 719,637 square feet, for a total of 820,217 square feet of non-residential development. Types of Amendments The Current Plan allows four types of amendments: "Mandated," "Administrative," "Development," and "Small Scale." See Joint Ex. 1, 2010 Hearing, Tab 21, p. 5 of 7. The Farmton Local Plan is categorized as a "Development Amendment." A "Development Amendment" is defined by Chapter 21, Section (C)1.c. of the Volusia County Comprehensive Plan (the "Plan" or the "Comprehensive Plan") as: An Amendment which is initiated by the property owner(s) to change the Plan so that a particular development type or land use not otherwise consistent with the Plan, would become consistent following adoption of the amendment. Applicants may be private individuals or a public agency sponsoring an amendment subject to the Comprehensive Plan. Id. Local Plans The FLP is included in the Local Plan section of the Plan's Future Land Use Element. Local Plans in the Comprehensive Plan apply to specific geographic areas and provide a greater level of detail than the Plan in general. The Current Plan includes 13 other Local Plans. Once enacted, "the most detailed portion of the Volusia Comprehensive Plan," tr. 458, will be the FLP. The FLP The Original Amendment The Original Amendment includes one goal, eight related objectives and numerous policies under each of the eight objectives. The Amendment depicts on the Future Land Use Map two new future land use designations: "GreenKey" and "Sustainable Development Area" ("SDA"). The entire site is designated as either GreenKey or SDA. Objective FG 2 in the Amendment states: GreenKey and designated Resource Open Based Space shall be managed for natural resource protection and preservation of interconnected regional wildlife corridors, and conserved in perpetuity. "Resource Based Open Space" ("RBOS") is governed by Policy FG 2.4 of the Original Amendment: Resource Based Open Space. Resource Based Open Space shall be designed within Sustainable Development Area districts to protect and enhance environmental systems. Resource Based Open Space shall not include parcels identified for development (including, but not limited to individual yards), active open space, or civic open space. Resource Based Open Space lands may include areas set aside for ecological preservation, enhancement and restoration, nature trails, conservation education programs, observation decks and similar facilities including lakes used for detention and retention of surface water. Resources [sic] Based Open Space may include, flood plains, wetlands, mitigation areas, vegetative buffers, specialized habitat for flora or fauna, passive recreation areas, water resource development areas, and shall be designed during the development review process. All such lands shall be subject to a conservation management plan, as set forth in FG 2.10 and FG 2.11, and protected in perpetuity by conservation easements. At least 25% of each SDA district shall be Resource Based Open Space. Joint Ex. 7, 2010 Hearing, Tab D-2, pgs. 9 and 10 of 49. The SDAs are primarily altered pine plantation lands. They total approximately 15,000 acres. Within the 15,000 acres of SDA land "are four land use districts which define the uses, densities, and intensities planned for each district." Id. at p. 4 of 49. The four are the Gateway District, Work Place District, Town Center District, and the Villages District. Within GreenKey, the Farmton Local Plan allows the continuation of agricultural uses employing practices regarded as "Best Management Practices" and prohibits residential and nonresidential development. There are two areas in GreenKey with additional natural resource protection standards. They are the Deep Creek Conservation Area which will be conveyed to a Community Stewardship Organization and managed in a primarily natural state and the Southwest Wildlife Corridor which will be managed to maintain habitat for wildlife, particularly for the Florida Black Bear. The FLP includes two long-range planning horizons. The "initial planning horizon" is 2025; "[t]he second planning horizon . . . shall be from 2026 to 2060." Policy FG 1.1, 2010 Hearing Joint Ex. 7, Tab D-2, p. 7 of 49. Through 2025, residential and nonresidential development may only occur within the Gateway District, "a distinct geographic area of approximately 821 acres at the northern end of the Farmton Local Plan near SR 442 and I-95." 2010 Hearing Joint Ex. 7, Tab D-2, 4 of 49. The development in the Gateway District is limited to a maximum under any circumstances of 4,692 residential units and 820,217 square feet of nonresidential development. See Policies FG 1.1, 1.4. "However, in order to plan for school capacity, there shall be no more than 2,287 dwelling units [in the Gateway District] unless there is a finding of school adequacy issued by the school district." Policy FG 3.4. Through 2060, the Amendment allows a total of 23,100 residential units and 4.7 million square feet of nonresidential development, excluding educational facilities and other institutional uses, within the various SDAs. With the exception of the Gateway District, which is in phase one of development, Policy FG 3.10 requires the development and implementation of a program designed to ensure an adequate number of jobs per residential dwelling unit exists in the SDAs. In phase two and subsequent phases, the development order shall require milestones for achieving the jobs-to-housing ratio target. In the event that the jobs-to-housing ratio drops below 0.65, residential development approvals shall be suspended until a remedial plan can be developed and approved as set forth in an accompanying development order. Policy FG 3.10. Prior to the FLP, the site had been subdivided into approximately 1,700 vested lots pursuant to existing exempt subdivision policies in the Volusia Land Development Code. The Original Amendment extinguished the vested exempt subdivisions as of the effective date of Ordinance 2009-34. The Original Amendment requires all lands designated GreenKey to be placed either in a conservation easement or a conservation covenant. A conservation covenant "is similar to an easement" 2010 Hearing, tr. 1077, "except that its term shall run with the land for an initial term of ten years, which shall automatically be renewed every ten years thereafter so long as the maximum densities and intensities established in the Farmton Local Plan Objective 3 shall remain in effect . . . ." Policy FG 2.15. For example, "Density and Intensity" for the WorkPlace District is described in Policy FG 3.5: "The WorkPlace district shall have a minimum density of eight units per acre and a target density of 18 units per acre. The minimum floor area ratio (FAR) for the nonresidential uses shall be 0.3 FAR." Joint Ex. 7, p. 22 of 49. A covenant under the FLP is converted to a perpetual conservation easement as prescribed in Policy FG 2.15: "At such time as the Master Development of Regional Impact equivalent Master Plan as provided in Objective 8 is approved consistent with the densities and intensities as set forth in Objective 3 in effect [when the FLP is adopted] . . ., a perpetual easement shall be recorded within 60 days." Joint Ex. 7, p. 15 of 49. The FLP requires a minimum amount of land to be set aside for conservation purposes as RBOS. Policy FG 2.4, quoted above, requires that a minimum of 25 percent of SDA land be set aside as RBOS. The RBOS lands will be placed in conservation covenants or easements. Policy FG 2.5 b. requires that a Black Bear Management Plan be developed in consultation with the Florida Fish and Wildlife Conservation Commission consistent with the Commission's Black Bear Habitat Management Guidelines and best available science. The Black Bear Management Plan applies to the Southwest Wildlife Corridor, part of which is on the site in Volusia County and part of which is in Brevard County. GreenKey and RBOS are subject to a mandatory conservation management plan ("CMP") to be funded by the landowner or its successors in interest. The CMP is to be developed by the owner through a task force appointed by the county within one year of the recording of the conservation easement. The CMP is to be "incorporated into the conservation covenants and easement and made enforceable." Policy FG 2.11, 2010 Hearing Joint Ex. 7, p. 12 of 49. Under the FLP, protected wetlands within the SDA will be afforded a wider buffer than was required under Plan prior to the FLP. Through the RBOS designation, additional lands will be preserved and protected by what is in essence a secondary buffer. Under Policy FG 3.2, the footprint of SDAs is "designed to shrink." Tr. 1078. The policy provides: "For the purposes of calculating residential density and . . . FAR within the SDA districts, the density and FAR provision provided in the policies of Objective 3 of this Local Plan shall be calculated based on net SDA Buildable Area. Net SDA Buildable Area shall equal the total SDA district reduced by the minimum 25 percent [RBOS] area and by the minimum 40 percent mandatory Civic Space. Civic Space includes streets, stormwater systems, parks, buffers, water, access easements and other public infrastructure. . . ." Joint Ex. 7, p. 19 of 49. Policy FG 1.6c requires the SDAs to contain RBOS "such that when combined with GreenKey lands more than 36,000 acres or 75 percent of the area with the Farmton Local Plan shall be preserved." Joint Ex. 7, p. 8 of 49. Based on the acreage in GreenKey, RBOS, and buffers required by FG Policy 2.19 for SDA boundaries, wetlands, trails and roads, Sharon Collins, a private biological consultant for Miami Corporation and the primary field biologist onsite, estimated that the minimum amount to be protected under the FLP is 39,265 acres, which equals 80 percent of the total acreage subject to the FLP. b. The Remedial Amendments The County Council of Volusia County's Ordinance 2011- 10 (the "2011 Ordinance") which adopts the Remedial Amendments describes their substance in three sections. See 2011 Joint Ex. 10, page 2 of 3. Section I of the 2011 Ordinance consists of text amendments to: "Chapter 1 Future Land Use Element, Farmton Local Plan, Policies FG 2.4, FG 2.56, FG 2.18, FG 4.14, FG 4.15, FG 4.18, FG 4.20, FG 4.21, FG 5.7, FG 5.8, FG 5.16, and FG 8.1 . . . ." Id. The language of the text amendments referred to in Section I is contained in Exhibit A to the 2011 Ordinance. Sections II and III of the 2011 Ordinance refer to amendments to maps and figures. In Section II, the "Farmton Local Plan-Future Land Use Map" is amended "to include new land use of Mandatory Resource Based Open Space and by expanding the Southwest Wildlife Corridor to include additional lands." Id. Section III adds the "Farmton Local Plan Spine Transportation Network" to the Comprehensive Plan "as a new Figure 2-10 to the transportation map series." Id. The lands under the new land use of Mandatory Resource Based Open Space ("MRBOS") count toward the calculation of the requirement that at least 25 percent of the SDAs taken as a whole be RBOS. The location of all of the RBOS lands have not been determined. They are not shown, therefore, on the Future Land Use Map ("FLUM") series. The revised FLUM, however, delineates where the MRBOS lands are located. The MRBOS will be subject to a Black Bear Management Plan. Policy FG 2.5b sets forth that it is to be developed in consultation with the FFWCC consistent with its Black Bear Habitat Management Guidelines and best available science. The Parties Petitioners Petitioner Barbara Herrin is a resident and owner of real property in Volusia County. She submitted comments regarding the Original Amendment during the time period between the transmittal hearing and the adoption hearing. She submitted comments about the Remedial Amendment at the adoption hearing. ECARD, one of two Petitioners in Case No. 10-2419 (with Ms. Herrin), is a Florida not-for-profit corporation with a membership of approximately 60 members, of which at least 50 are residents of Volusia County. ECARD submitted comments about the Original Amendment during the period of time between the transmittal and final adoption hearings for Ordinance 2009-34. It provided oral comments through counsel at the adoption hearing for Ordinance 2011-10. Sierra Club, one of the two Petitioners in Case No. 11-2527, is a California not-for-profit corporation registered in Florida with approximately 90,000-100,000 members. It has unincorporated state and local chapters. The Florida Chapter has approximately 29,000-30,000 members and the local Volusia County Chapter has approximately 820 members. Three letters containing comments about the Remedial Amendment were submitted to the Volusia County Council by the "Volusia/Flagler Group of Sierra Club and the Northeast Florida Group of Sierra Club," tr. 27, and by the Sierra Club Florida at the public hearing on the Remedial Amendment held in April 2011. All three letters were presented on behalf of Sierra Club. In addition, "[t]he Sierra Club Florida presented comments [at] the same public hearing." Tr. 28. Sierra Club does not own land in Volusia County. It does not own or operate a business in Volusia County. "The Volusia/Flagler Group has [its] own bank account." Tr. 39. Sierra Club has general meetings "in the area" id., to which the public is invited. The Club conducts outings to parks and natural areas "in the area" id., and members appear in public hearings where they speak. Members engage in letter-writing and "various other civic activities." Id. b. Respondents Volusia County (the "County"), a political subdivision of the State, adopted the FLP. Miami Corporation is a Delaware corporation registered in the State of Florida. It is the owner of the property that is the subject of the FLP and was the applicant for the text and map amendments that make up the FLP. Through its representatives, Miami Corporation submitted comments to the County about the Original Amendment during the period of time beginning with its application and through the transmittal hearing and the adoption hearing. It submitted comments to the County about the Remedial Amendment at the adoption hearing. Volusia Growth Management Commission ("VGMC") is a dependent special district of the County created pursuant to Volusia County Charter Section 202.3. Its duties include the review of amendments to local comprehensive plans. VGMC submitted comments to the County about the Original Amendment during the period of time between the transmittal hearing and the adoption hearing. It submitted comments to the County about the Remedial Amendment at the adoption hearing. Suitability The Community Planning Act defines "suitability" as "the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development." § 163.3164(45), Fla. Stat. "Compatibility" is defined as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." § 163.3164(9), Fla. Stat. Future land use map amendments are required to be based upon several analyses. One of them is "[a]n analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site." § 163.3177(6)(a)8.b., Fla. Stat. The future land use plan element is required to include criteria to be used to ensure the protection of natural and historic resources and to provide for the compatibility of adjacent land uses. See § 163.3177(6)(a)3.f. and g., Fla. Stat. Suitability: Petitioners' Evidence Mr. Pelham, Secretary of the Department at the time the Original Amendment was found by the Department to be not in compliance, testified at the 2011 Hearing that the site of the FLP is not suitable for development of the magnitude and nature allowed by the FLP. Consistent with the definition of suitability, the testimony of Mr. Pelham addressed both land and water. Commencing with water, he described the property as "extremely wet [and] dominated by an extensive system of sloughs, marshes, creeks, [and] swamps . . . ." 2011 Hearing, tr. 249. The property is an important state and regional resource that contains a variety of important wildlife habitats. Much of the property and substantial parts of the SDAs are in the 100-year flood plain. The property is extremely significant to the area's watershed as an area of recharge and a "high aquifer vulnerability area." 2011 Hearing, tr. 249. Mr. Pelham drew support for his opinion on suitability from the Comprehensive Plan. The County finds in the Plan that the lands subject to the FLP consist of "large, relatively uninterrupted expanses of rich natural resource areas." Tr. 250. The County gave the lands the NRMA designation precisely because they should "be protected and maintained because they serve a variety of functions, water-related, habitat area, a source of water, the open space and rural character, . . . [all] very important to Volusia County " Id. Mr. McDaniel testified as to the official position of the Department in 2010: that the property is not suitable for the FLP. Mr. Pelham's testimony in the 2011 hearing echoes and amplifies Mr. McDaniel's testimony. Dr. Smith testified in both the 2010 Hearing and the 2011 Hearing that development at the scale and intensity of the FLP is not suitable for the site for the same reasons given by Mr. Pelham and Mr. McDaniel. Other Analysis of the Character of the Land The FLP is based on an ecological evaluation that uses GIS-based decision support models and is supported by field work of biologist Sharon Collins. The ecological evaluation was reviewed by scientists from state agencies, universities, and conservation organizations. Ms. Collins provided 15 years' worth of data collection and field work on the site. Her first field assessment of the entire site took place between 1995 and 1998, and included wetlands delineation, evaluations of vegetative communities, habitats, historic natural conditions, hydrology, and listed species. Ms. Collins began remapping and reevaluating toward an ecological evaluation in 2005. The efforts led to the issuance of a report prepared for Miami Corporation and submitted in November 2008. The report was revised in July 2009. It is entitled, "GreenKey Project, Ecological Evaluation Assessment Methods" (the "EEAM Report"). See 2011 Hearing, Joint Ex. 5, Tab 10. Section 1.3 of the EEAM Report, entitled "Resource Identification," describes Ms. Collins' collection of data she used to identify habitat on the site. Among the data sources are the "'Guide to the Natural Communities of Florida' (FNAI, 1990)," id. at 3, and the "Florida Land Use, Cover and Forms Classification System (FLUCFCS) produced by the Florida Department of Transportation." Id. Other data used in support of the EEAM Report include soils surveys, historic aerial photographs, the U.S. Fish and Wildlife ("USFWS") and Florida Fish and Wildlife listed species databases, a SJRWMD GIS FLUCCS map and an "exhaustive list" which Ms. Collins detailed at hearing. See 2011 Hearing tr. 1314. After evaluation of the data, Ms. Collins conducted "ground-truthing" or work in the field. Armed with the FLUCCS Map and the infrared aerials, she "went out in the field and did a comprehensive field analysis . . . and ground-truthed what [she] saw in the field with the [data] . . . ." 2010 Hearing tr. 1309. In order to evaluate and rank the various habitats on site, Ms. Collins designed a methodology using seven metrics that target the protection of regionally significant landscapes. She then assigned "ecological value ratings" and groupings of the habitats based on value as described in Section 1.5 of the EEAM Report: The habitat values ranged from a score of 7 to 1, as shown below from highest to lowest value: Crane Swamp and Spruce Creek Swamp (A & B) Buck Lake and Buck Lake Marsh (C) Cow and Deep Creek (D) Large Sloughs--forested and herbaceous E & F) Scrub Uplands (H) Smaller Wetlands--forested and herbaceous (J & K) Salt March (G) Oak and Hardwood Hammocks (I) Natural Pine Flatwoods (L) Harvested Wetlands (O) Hydric Pine Plantation (M) Pine Plantation (N) To provide a simple yet comprehensively applicable natural resource rating that applies and transfers value to the Farmton landscape, the habitats were further reduced to four groups of comparable ecological value and function. Therefore, Habitats A-D were grouped as one, Habitats E&F another, Habitats G-L as one, and the silvicultural habitats--Habitats M-O--as the fourth group. * * * The habitat types with natural resource rating scores around 7.0 (6.93 to 7.0) include Crane/Spruce Creek Swamps, Buck Lake and Marshes, and Cow and Deep Creeks. They are classified as "Regionally Significant Conservation Habitat Areas." They are regionally situated, extending beyond the boundaries of Farmton. The habitat types with natural resource rating values of around 6.0 include the larger sloughs and swamps. They are classified a s "Significant Conservation Habitat Areas." They are generally greater than 100 acres in size, make up a significant portion of the Farmton landscape, provide an interconnected network of wetlands across the property, but remain mostly onsite. The habitat types with natural resource rating values that are midrange around 3 (2.7-3.7) include the scrub uplands, oak and hardwood forests, salt marshes, natural pine flatwoods, and the smaller swamps and sloughs that have been generally embedded within pine plantations onsite. They are classified as "Conservation Habitat Areas." The fourth habitat types are with natural resource rating values of less than 3, with a range from 21.4 to 1.0, include the silvicultural habitats of the hydric and upland plantations as well as the harvested wetlands. They are classified as "Silvicultural Habitat Areas." These habitats are located onsite and are managed for timber, with varying degrees of tree ages, tree densities and site preparation stages, and/or harvesting disturbances. Joint Ex. 5, Tab 10 at 7-8. The EEAM's rankings were used as a basis for the Farmton Plan's design. The most significant natural resources and environmentally sensitive lands according to the EEAM rankings were designated GreenKey to be subject to permanent conservation. Areas which were disturbed or the least environmentally sensitive lands were deemed more suitable for future development and designated as SDA. The FFWCC used its own data to review the Farmton Local Plan. It was the first comprehensive plan amendment (or project) reviewed under the Critical Lands and Waters Identification Project ("CLIP"). In the opinion of Dr. Walsh, a biological administrator with the FFWCC who supervises FFWCC land use consultations with external entities such as local governments and private land owners, the Farmton Local Plan is based on the best available science. In Dr. Walsh's opinion, the FLP provides for the conservation of wildlife and wildlife habitat and conserves and appropriately plans for protection of endangered and threatened wildlife. Land Use Protections The environmental evaluations are reflected in the FLP policies that require at least 67 percent of the site be designated as GreenKey and 75 percent or at least 36,000 acres of the site be preserved as GreenKey and RBOS. See Policies FG 1.3 and 1.6c, 2010 Hearing, Joint Ex. 7 at pages 7 and 8. Furthermore, Policy FG 2.6 states: As Sustainable Development Area districts are planned for future development, they shall employ Greenprinting decision support models to identify wetlands, flood plains, mitigation areas, vegetative buffers, specialized habitat for flora and fauna, and under-represented natural communities, water resources development areas and trails. Joint Ex. 7, page 11 of 49. The FLP provides additional conservation measures for the most environmentally significant areas. Policy FG 2.5 establishes the Southwest Wildlife Corridor. Policy FG 2.5a establishes the Deep Creek Conservation Area with special levels of protection. The Remedial Amendment creates MRBOS lands and designates them on the Future Land Use Map. The result is that 33,665 acres of the site will be placed into conservation. With RBOS, wetland protections, and associated buffers, 80 percent of the site or 39,265 acres ultimately will be conserved. All lands placed in GreenKey, MRBOS, and RBOS are subject to the CMP approved by the Volusia County Council and ultimately subject to a conservation easement that perpetually protects the lands. See Policy FG 2.10, Joint Ex. 7. Policy FG 8.1 provides: No building permit shall be issued for new development within the SDA districts within five (5) years of the effective date of the Farmton Local Plan. No development order for new construction shall be issued prior to the approval by the county council of the Conservation Management Plan (CMP) described in policies FG 2.10 and 2.11 and the recording of a perpetual conservation easement over all Green Key lands as set forth in policy FG 2.15 with the specific exception of essential public utilities or communication structures. Joint Ex. 10, page 7 of 7. The Council has appointed a CMP Task Force to develop the plan. Natural Resource Management Area The NRMA overlay covers the entire site. It does not prohibit development but subjects it to scrutiny by the County. The NRMA overlay has not successfully prevented habitat fragmentation. Prevention of habitat fragmentation is a basis for the "layered additional protections," 2010 Hearing tr. 1167, of the FLP, including the Environmental Core Overlay Areas ("ECO"). Areas that must be protected are covered by the ECO, which receive the greatest protection in the Current Plan. The ECO covers approximately 11,000 acres of the site. The FLP adds 20,900 acres to the ECO. Without the FLP, and in spite of the NRMA and ECO overlays, existing Current Plan policies allow the Farmton property to be subdivided into approximately 1,700 lots. Significant habitat fragmentation is a potential result. The FR portion of the site, moreover, may develop in a clustered pattern at a density of one unit per 5 acres, as opposed to one unit per 20 acres under Future Land Use Policy 1.2.3.2. There are ranchette subdivisions in the site's vicinity and ranchettes are a feasible development option for the site. The FLP provides stronger natural resource protection than existing policies for the resources it protects. Its more restrictive standards eliminate the potential for development of the most sensitive areas and eliminate vesting of previously vested lots. Policy FG2.1 provides that the FLP is supplemental to NRMA and ECO. If the FLP conflicts with NRMA, the more specific or restrictive policies apply. The FLP is consistent with the current Plan provisions for the NRMA, Environmental Systems Corridor, and ECO. The Florida Black Bear and Regional Wildlife Corridor The Florida Black Bear is a State-designated Threatened Species. See chapter 68A-27. The purpose of the FFWCC in promulgating rules relating to endangered or threatened species is stated at the outset of chapter 68A-27: The purpose . . . is to conserve or improve the status of endangered and threatened species in Florida to effectively reduce the risk of extinction through the use of a science-informed process that is objective and quantifiable, that accurately identifies endangered and threatened species that are in need of special actions to prevent further imperilment, that identifies a framework for developing management strategies and interventions to reduce threats causing imperilment, and that will prevent species from being threatened to such an extent that they become regulated and managed under the federal Endangered Species Act of 1973, as amended, 16 U.S.C. §1531 et seq. Fla. Admin. Code R. 68A-27.001(1). In June 2010, the FFWCC accepted recommendations of bear experts that it find there is "not a high risk of extinction," 2011 Hearing tr. 626, for the Florida Black Bear. Acceptance of the recommendation was accompanied by the commencement of the adoption of a management plan for the Black Bear. Upon the adoption of such a plan, the FFWCC is expected to de-list the Florida Black Bear from the threatened and endangered species lists. See id. Policy FG 2.5b requires the CMP within the Southwest Wildlife Corridor to address habitat requirements for the Florida Black Bear in consultation with FFWCC. The FLP provides for the protection of regional wildlife corridors. Objective FG 2 of the FLP reads: "GreenKey and other Resource Based Open Space shall be managed for natural resource protection and preservation of interconnected regional wildlife corridors, and conserved in perpetuity." Joint Ex. 5, Tab 3 at 8. Nearly the entire Farmton Site constitutes Bear Potential Habitat. See DCA Ex. 4F. The entire site has been identified as Secondary Bear Range, see DCA Ex. 4G, and is roughly within 10 miles of an area of Primary Bear Range to its north and 20 miles of the same area of Primary Bear Range to its west. The area of Secondary Bear Range that includes the Farmton Site also includes urban areas such as the cities of Deland, Orange City, Deltona, and Sanford. Several hundred thousand people live in the secondary range that includes the Farmton site. The area of Secondary Bear Range in which the Farmton Site is located is habitat for the Ocala and St. Johns subpopulations of the Black Bear. While Dr. Hoctor considers the Ocala and St. Johns subpopulations to be separate, David Telesco, the Black Bear Management Program Coordinator for the FFWCC, described them as one subpopulation of bears that range over the Farmton Site, the Secondary Bear Range in which it is located, and nearby Primary Bear Range: This is our largest population of bears, estimated as potentially 1,200 animals. It's also the most densely populated, which means it's the highest quality habitat we have in the state. And our habitat models that we have are showing it as a stable subpopulation. 2011 Hearing, Tr. 625. Bear ranges do not coincide perfectly with bear habitat. Bears may range in areas that are not habitat. Just as in the case of ranges, bear habitats are classified as primary and secondary. Primary and Secondary Bear Habitats are both present on the Farmton Site. In Dr. Hoctor's opinion, to view Secondary Bear Habitat composed of pine plantation (as is the secondary habitat on the Farmton Site), to be more suitable for development would not be accurate or scientifically defensible. "[P]ine plantations are important habitat in and of themselves, plus they're important for . . . connecting all of [the] forested wetlands on [the Farmton] site . . . ." Tr. 475. An array of expert testimony was presented at the 2010 Hearing by Petitioners, the County, and Miami Corporation as to whether the FLP provided adequate wildlife corridors and protection of bear habitat. Dr. Hoctor testified that the Farmton Site is "particularly significant for potentially supporting . . . functional connectivity between the Ocala and Saint Johns [Black Bear] [sub]populations to those that are further south, the Highlands/Glades [sub]populations and Big Cypress [sub]population." Tr. 463. In the past, Florida's Black Bear population was integrated. There was "one [Black Bear] population . . . that occurred throughout the State of Florida." Tr. 465. The several Black Bear populations identified in the state now, however, are genetically distinct due to isolation caused by habitat loss, hunting and poaching. Re-integration will promote genetically healthy populations. Genetically healthy populations are more likely to adapt to future environmental changes and maintenance of connectivity between the subpopulations will promote a genetically healthy population of the Black Bear. A primary method of promoting a genetically healthy population is maintenance or restoration of functional corridors that connect sub-populations of the Black Bear in the state. Functional corridors are necessary to restore a single Black Bear population in the state or a "metapopulation . . . a set of subpopulations that are interacting through disbursal [sic] of individuals between . . . [the] various populations." Tr. 468. Dr. Hoctor opined, "If we're going to have a functional corridor between the populations to the south [south of northern Brevard and southern Volusia Counties] and to the Saint Johns and Ocala populations [to the north], it's more than likely going to have to occur through the Farmton Property." Tr. 467. It is Dr. Hoctor's opinion that functional corridors through the Farmton Property are particularly important to maintenance of the St. Johns subpopulation which consists of only 96 to 170 bears when a viable sub-population of bears is at least 200. Dr. Hoctor regards the wildlife corridors provided by the FLP, both for the Black Bear and other species, to be insufficient to offer adequate protection. They are not wide enough nor do they encompass enough acreage, in his opinion, to provide an adequate home range for a female Black Bear. The FLP allows too many significant road crossings. With regard to the Black Bear and other species, moreover, the FLP, in his opinion, does not sufficiently counter negative edge effects, that is, "negative impacts on natural areas or protected lands . . . from adjacent intensive land uses." Tr. 483. Consistent with action taken in June 2010, the Commission is in the process of adopting a Black Bear Management Plan for Florida. On May 19, 2010, the FFWCC issued a "Draft Black Bear Management Plan for Florida" (the "Draft Plan") which has been up-dated but remains in draft form. The Draft Plan opens with an executive summary, the first paragraph of which follows: The long-term future of Black Bears in Florida currently is uncertain because of their large spatial requirements, the fragmented nature of remaining populations, and increasing human development and activity leading to conflicts. A statewide management plan is needed to conserve this valued wildlife species. * * * This management plan is not intended to set all policies and operations for bears, rather it is intended to form a platform from which policies can be updated and operations can be based. While this plan will set clear guidance and structure for bear conservation in Florida, it will not be a panacea or silver bullet for current issues. In fact, this plan may create more work as key challenges are addressed in implementation. VC/MC Ex. 49. The Draft Plan does not contain any reference to Dr. Hoctor's opinion that the Farmton Site is a critical linkage between the Ocala and St. John's subpopulations and the subpopulations of Black Bear to the south. Randy Kautz, a supervisor of the nongame habitat protection planning section at the FFWCC and its predecessor agency for 20 years, testified that he knew of no agency recommendation to establish a corridor for Black Bears between the Ocala/St. Johns subpopulations and subpopulations of Black Bear to the south. Furthermore, he thought it very unlikely that the subpopulations would become connected if an adequate Black Bear corridor existed on the Farmton Site. He gave several reasons that included man-made disruptions between the subpopulations (such as pasture lands) and natural barriers posed by the St. Johns River, Lake Harney and marshes to the southwest of the Farmton Site over which Black Bears are not likely to traverse. Under the Original Amendment, the Southwest Wildlife Corridor ensures a wildlife corridor approximately one mile in width in the areas closest to the St. Johns River because the science indicated that was the primary regional wildlife corridor for the region. Within the Southwest Wildlife Corridor is the Deep Creek Conservation Area. It is the site's most significant area for regional movement of wildlife and will contribute to a corridor spanning as wide as three miles near the St. Johns River. The Remedial Amendment increases the Southwest Wildlife Corridor to establish a minimum of a one-mile buffer outside the areas planned for development. There are no hard and fast rules for what constitutes a functional wildlife corridor. The Cow Creek Corridor, Southwest Wildlife Corridor, and the corridor along the Volusia-Brevard border exceed a 10:1 ratio of length to width, a favorable ratio for wildlife, and each is a minimum of 900 meters in width. The Southwest Wildlife Corridor, which is 11.81 miles in length, was expanded by the Remedial Amendments to a minimum width of one mile, an average width of 2.26 miles, and a maximum width of 5.3 miles, and has a reduced length-to-width ratio of 5.2:1. The Cow Creek Corridor, which is not a regional wildlife corridor, was increased to 3.86 miles in length, a maximum width of 1.07 miles, a minimum width of 0.63 of a mile, and has a length-to- width ratio of 4.73:1. Respondents provided expert opinions that the FLP's provision of wildlife corridors is consistent with regional long range conservation planning and fits into an ecosystem pattern with wildlife corridors, linkages, and a variety of habitats. Respondents also presented expert opinion that FLP's proposed conservation areas are consistent with Florida wildlife conservation strategy. Other Listed Species and Wildlife Habitat Petitioners allege that the amendment fails to protect native vegetative communities, wildlife, wildlife habitat, and threatened and endangered species. The SOI lists several federally listed species within USFWS consultation areas for the Crested Caracara, the Florida Scrub Jay, and the Everglades Snail Kite. A consultation area includes the bird's dispersal range. Ms. Collins has never seen one of these three bird species on the property during her 15 years onsite, which she attributes to the site's inappropriate habitat for the species. Dr. Smith and Dr. Walsh also testified that it was highly unlikely to find these species on site. If a project is located within a listed species consultation area, the developer is required to meet with the USFWS to address the issue further during the permit process. Other listed species are found or are likely to be found on the site. However, there will be adequate habitat and conservation areas to support them. Gopher tortoises, for example, found within an SDA will be protected by existing County policies. The FLP provides a higher level of protection for listed species and other wildlife than if the site were developed under the current land uses. No development may take place, moreover, until the CMP is approved and incorporated in the development order. Policy FG 2.11 lists numerous minimum criteria for the CMP, including the identification of USFWS consultation areas and known onsite threatened and endangered plants and animals, the protection of habitats of species that are listed, imperiled, and otherwise in need of special protection, and coordination with management plans of adjacent conservation areas. Farmton contains native vegetative communities including mesic flatwoods, scrub flatwoods, and pine flatwoods. These native vegetative communities are predominantly present in the GreenKey conservation areas and will be protected. FAVA and Site-specific Data A Florida Aquifer Vulnerability Assessment Map (the FAVA Floridan Map) for the Floridan Aquifer of the Farmton Site depicts three levels of vulnerability: "More Vulnerable," "Vulnerable," and "Less Vulnerable." See DCA Ex. 4D. Most of the Farmton Site is in the area depicted by the FAVA Floridan Map as "More Vulnerable." All of the SDAs allowed by the FLP to be developed as Gateway, Town Center and Work Place subareas, for example, are depicted as "More Vulnerable." Most of the SDAs allowed by the FLP to be developed as Village subareas are depicted as "More Vulnerable" and the remainder is depicted as "Vulnerable." The FAVA Floridan Map depicts none of the SDAs as "Less Vulnerable." See DCA Ex. 4-D. The FAVA maps supported the Department's determination that the Original Amendment was not in compliance. FAVA maps are used as data by the Department because they depict areas where the aquifer is susceptible to contamination from surface contaminants. In that they "cover broad swaths of the State of Florida, [however] . . . they are not meant to supersede site-specific data." Tr. 1942. Dr. Seereeram, on behalf of Miami Corporation, gathered data specific to the Farmton site. The data included "detailed soil profiles every six inches vertically . . . [to] depths . . . over 100 feet . . . ." Tr. 1941. His site- specific data showed that there are confining layers between the surficial aquifer and the Floridan aquifer that prevent "rapid movement of groundwater from [the surficial] aquifer into the underlying Florida[n] aquifer." Tr. 1941. The site-specific data led Dr. Seereeram to conclude that the Department's concern for contamination potential to the Floridan Aquifer based on the FAVA is misplaced. In light of his site-specific data, Dr. Seereeram's opinion is that the development of the Farmton property will not "pose a threat to the aquifer." Tr. 1942. Dr. Seereeram's opinion, based on the question from counsel, is expressed in terms of "the aquifer." See id. Based on the FAVA maps and the entirely to his testimony with regard to site-specific data, the opinion does not apply to the Surficial Aquifer but only the Floridan Aquifer. The development of the Farmton Site in Volusia County does not pose a threat to contaminate the Floridan Aquifer. Floodplains, Wetlands, and Soil The Farmton Site in Volusia County is predominantly floodplains and wetlands. Petitioners allege that the land uses proposed by the FLP are incompatible with wetland protection and conservation. The Comprehensive Plan's map series depicts a large portion of the County as being located within the 100-year floodplain. A significant part of the SDAs are within the 100- year floodplain. There is no state or federal prohibition of development in a floodplain. The Comprehensive Plan and the FLP describe the floodplain. The Comprehensive Plan does not prohibit development in the 100-year floodplain. The FLP, however, "advises development away from the floodplain, specifically as it relates to schools in the Farmton Local Plan." Tr. 1095-6. Development in floodplains has been allowed by the County subject to elevation of construction to be flood-free upon completion and mitigation via on-site flood storage. The Plan's floodplain policies would apply to development under the FLP and the FLP has policies which relate to floodplains. Policy FG 2.21 in the FLP, for example, requires the following: Floodplains. Impact to the 100-year floodplain shall be minimized. Any impacts must be fully mitigated by providing compensatory storage on-site. Joint Ex. 7, Tab D-3 at 17 of 46. As a result of changes made by the Remedial Amendment, the majority of developable lands within the SDAs are uplands not wetlands. Based on a review of aerial photography, soil surveys, and other data, combined with field work, Ms. Collins concluded that approximately 29 percent of the total SDA acreage can be identified generally as wetlands. The dominant soils in the SDAs are Smyrna fine sand, Immokalee fine sand, Eau Gallie fine sand, and Myakka fine sand. Myakka soil, the soil of the flatwoods, is the most common soil in the state and has been designated as the "state soil." Tr. 1358. There are similar soils on adjacent properties. They are soils "that have had development occur on them." Tr. 1097. All of the soils in the SDAs are suitable for development. Wetlands delineation is not required at the comprehensive plan stage. It will be required prior to approval of development plans or issuance of a development order. The buildable areas within the SDAs will be determined with input from environmental regulation agencies prior to development order approvals. Without the FLP, preserved wetlands would be protected by a fifty-foot buffer. In contrast, Policy FG 2.19d requires all preserved wetland areas within an SDA to be protected by a buffer that averages 75 feet in width and is no less than 50 feet in width. See Joint Ex. 7, Tab D-2, page 17 of 49. On GreenKey land, the policy provides enhanced wetland buffer widths of an average of 100 feet with a minimum buffer of 75 feet. See id. "If different buffer widths are required by a permitting agency, the wider buffer shall apply." Id. Policy FG 2.20 states that activities within the FLP "shall be planned to avoid adverse impacts to wetlands and the required buffers as described in FG 2.19(d)." Id. No less than 25 percent of each SDA as a whole must be set aside as RBOS, which may include wetlands. See Policies FG2.4 in Joint Ex. 10, Exhibit A, page 1 of 7; and 3.2 in Joint Ex. 7, Tab D-2. Per Policy FG 2.8, those open space areas will be determined in consultation with regulatory agencies, Volusia Forever and entities that are parties to the conservation easements required by Policy FG 2.12. See Joint Ex. 7, Tab D-2. Policy FG 2.6 requires that, when establishing RBOS, priority "be given to lands on the perimeter of the SDA, which are contiguous to GreenKey lands." Id. at page 11 of 49. In accordance with Policies FG 2.10 and 2.11, those RBOS areas will be added to the conservation easement and be incorporated in the CMP. Policy FG 2.11h requires the CMP to contain "[p]rovisions for significant water resources (such as streams, creeks, natural drainage ways, floodplains, and wetlands) protection, enhancement, and restoration and planned hydrological restoration." Joint Ex. 7, Tab 2-D, page 13 of 49. Wetlands Mitigation Bank In 2000, after a two-year permitting process, approximately 16,337 acres of the Volusia Farmton site was approved for use as a mitigation bank. Of that approved acreage, only 7,030 acres have been placed under a conservation easement and are required to be maintained in perpetuity for conservation purposes. Those 7,030 acres will continue to be preserved under the FLP. The portions of the mitigation bank that have not been placed under conservation easement may not remain within the mitigation bank and may be withdrawn. At the time of the final hearing, an application filed by Miami Corporation was pending before the SJRWMD to modify the mitigation bank permit to withdraw approximately 1,100 acres from areas within the mitigation bank that have not been placed in conservation easement. The lands proposed for removal from the permit are located within the SDA areas. The remaining portions of the mitigation bank would be protected from SDA uses through the 200 foot SDA perimeter buffer and wetland buffer requirements in Policy FG 2.19. Conservation Management Plans Within one year of the effective date of the FLP, the Deep Creek Conservation Area and the permitted Mitigation Bank lands will be placed into permanent conservation easement. Within two years, a CMP will be developed and enforced through the conservation easements. Remaining lands will be protected through a conservation covenant as well as the CMP. The covenant will have a ten-year term and automatically renew until the initial development plan is approved. Upon approval of a development plan consistent with the densities and intensities of the comprehensive plan, those lands will also be converted to a permanent conservation easement. The Remedial Amendment requires that no development can take place until the CMP plan is established and perpetual easements are recorded. Urban Sprawl The Thirteen Statutory Indicators Section 163.3177(6)(a)9 mandates that an amendment to the future land use element discourage urban sprawl. Section 163.3177(6)(a)9.a provides 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl . . . ." Evaluation of the indicators "consists of analysis of the plan or plan amendment within the context of features and characteristics unique to each locality " See section 163.3177(6)(a)9.a. The 13 indicators are listed in the statute under roman numerals "I" through "XIII." I. The first indicator is promoting, allowing or designating "for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses." The current Plan (without the FLP) allows the site to develop as single residential uses at low densities. The pre- FLP densities allowed on the Farmton Site are one unit per 10 acres, one unit per 20 acres, or one unit per 25 acres depending on the three designations on the site: Agricultural Resource, Forestry Resource or Environmental Systems Corridor. Mixed use is not required, nor is clustering required. The result is a "ranchette pattern of land use." 2010 Hearing, Tr. 1817. Mr. Ivey at the 2010 Hearing described ranchette- style development and the use to which a ranchette would typically be put. He depicted a development pattern dominated by owners of property who want to be in the country to enjoy a country lifestyle. After purchase of the property, the owner typically builds a house, frequently clears the land, constructs a number of outbuildings and grows grass to support cows or goats. In Mr. Ivey's opinion, "if your goal is to protect the environment, [the ranchette pattern of development] does not do it." Tr. 1720. Mr. Pelham opined that, despite the current Plan's allowance of a ranchette style of development on the Farmton Site, the indicator is triggered because the FLP disperses so much low density development over the landscape and in development nodes. Such a pattern, in his opinion, "does result in a significant amount of low density sprawl, compounded by the fact that it's fragmented and distributed out rather than being in a very compact fashion." Tr. 280. In comparison to the ranchette style of development, however, the FLP calls for a mixed-use development much more concentrated than a ranchette type of development and, on balance, more protective of natural resources. The current land uses allow nonresidential development at a floor area ratio of 0.10 but non-residential uses are not required to be included so as to ensure a mix of uses. The current land use could result in an inefficient land use pattern of more than 4,600 residential units, each of which would be entitled to use a septic tank and potable water well. Conservation Element Policy 12.2.2.5 requires either clustering or open space for developments that contain environmentally sensitive lands or critical habitats but includes no minimum standards. The FLP removes residential entitlements from the GreenKey area and clusters residential development into the SDA areas. Since development is not allowed in GreenKey, it is reasonable to evaluate the FLP's density in terms of "net density" rather than "gross density." It is also appropriate to evaluate density based on the various SDAs. Each Village has a minimum density of 3 units per acre and a target density of 10 units per acre. The Town Center has a minimum density of 8 units per acre, a target density of 15 units per acre, and a center town square required density of 24 units per acre. Work Place has a minimum density of 8 units per and a target density of 18 units per acre. Finally, Gateway has a minimum density of 4 units per acre and a target density of 12 units per acre. The weighted average of the minimum densities throughout the SDAs is 3.3 units per acre and their weighted target density is 6.8 units per acre. This density is relatively high compared with developed portions of cities in Volusia County. The City of DeBary has a weighted average density of less than 2 units per acre. The City of Deltona has a weighted average density of 2.68 units per acre, and the City of Edgewater has a weighted average density of 4.89 units per acre. The weighted average maximum density for the residential land use categories in the unincorporated County is only 2.36 units per acre. The FLP also includes requirements for a mix of uses in the Gateway, Town Center, and Village districts. The jobs- to-housing ratio in Policy FG 3.10 also will ensure that development will contain a mix of uses. II. The second indicator is promoting, allowing or designating "significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development." Mr. Pelham found the indicator to be triggered because it designates over 12,000 acres of urban development in a rural area at a significant distance from existing urban development and leapfrogs over undeveloped urban-designated lands. Mr. Pelham holds the opinion despite the match of the FLP by the development that will be allowed under the Brevard County Comprehensive Plan on the Brevard County Farmton Property immediately adjacent to the Farmton Site in Volusia County. In addition to abutting the Brevard County Farmton Property, the Farmton Site abuts the City of Edgewater, and the approved Restoration DRI and Reflections PUD. There are undeveloped publicly managed lands and conservation easements in the vicinity of the Site. In contrast to Mr. Pelham, Mr. Metcalf does not think the indicator is triggered. He sees the FLP with its requirement of a greenbelt designated as GreenKey and RBOS and MRBOS to contain the essential components of an innovative development type known as "urban village." An urban village has the following characteristics: an area with urban density, a mix of uses including all major land use types in a self-contained, clustered, compact form that is transit-supportive and has a grid or modified grid street network and a walkable, unified design, with a defined edge separating urban rural uses. The FLP contains all the components required it to be considered to contain an "urban village" development pattern. III. Mr. Pelham concluded that the third indicator is triggered by the FLP's "fragmented development pattern . . . [with] ribbon strips of nodes, five or six of them, . . . in an isolated area." Tr. 281. In contrast, Mr. Metcalf opined that the FLP's "node" development pattern does not trigger the indicator. The nodes of development are not in a radial, strip or ribbon pattern. They do not, moreover, emanate from urban development. IV. Mr. Pelham's view that the FLP triggers the Indicator IV focuses on the 12,000 acres of NRMA land, a substantial portion of which will be converted to urban-type development. In contrast, witnesses for Miami Corporation cast the FLP as providing for the conversion of rural lands in a way that protects and conserves a range of natural resources, including wetlands and upland habitats. The indicator, moreover, does not require protection or conservation through preservation. Therefore, it is not triggered in all cases in which there is some use of the resource. GreenKey and MRBOS keep development out of the most environmentally sensitive wetlands and confines development to the SDAs so that wetland encroachment occurs only in wetlands of lower value than others in the area. Designation of areas as RBOS will also conserve natural resources. V. Indicator V refers to failure to adequately protect "adjacent agricultural areas and activities." Petitioners criticize FLP for failure to protect agricultural and forestry areas and activities within the SDAs. The Department of Community Affairs, however, has never applied the indicator to lands internal to an amendment. Policy FG 2.2 allows agricultural activities to continue in the GreenKey using Best Management Practices. Existing agricultural areas adjacent to the Farmton Site are mainly to the west. The FLP includes provision to adequately protect activities within those areas. Policy FG 2.19, for example, requires a minimum buffer of 200 feet around each SDA. Protection of adjacent areas and activities in the areas means Indicator V is not triggered by the FLP. VI. Mr. Pelham offered the opinion that the FLP fails to maximize use of existing public facilities and services by allowing a large urban development in a rural area that has no public facilities and services and no plan to provide them. Mr. Metcalf testified that the services to be considered would be law enforcement, fire, emergency medical treatment and solid waste. In assessing Indicator VI, Mr. Metcalf began with the assumption that development under the FLP will increase the population in the service district. He opined that the indicator is not triggered because "[t]he higher [the] population in that service district, the higher the maximum usage of that service." Tr. 808. VII. Mr. Pelham believed the FLP fails to maximize use of future public facilities and services because, whether the developer makes significant payment for them or not, the remote location and type of the development will keep it from benefiting from the efficiencies and advantages of scale it would enjoy if it were more proximate to urban development and more compact. Policy FG 3.6d requires the Town Center to house a majority of civic uses, including public safety facilities. The Spine Transportation Network and its related policies provide a network of roads that disperses traffic designed to avoid overloading with local trips. Water service in Gateway will be provided by extension of infrastructure from the Restoration site. "The extension of those lines would be closer than would be many neighborhoods within existing urban areas." Tr. 809. School capacity for the initial 2,287 units will be concentrated in Gateway. The critical mass that can be achieved through the urban village form of development will support onsite facilities needed by schools, law enforcement and fire departments. The location of the facilities will serve development on the Farmton Site and also nearby ranchettes and all of South Volusia County. Mr. Metcalf's opinion is that that the indicator is not triggered by the FLP. VIII. Mr. Pelham's opinion is that Indicator VIII is triggered. "Many studies have shown that allowing urban development far distances from existing urban development drive up the cost of providing infrastructure." 2011 Hearing, tr. 285. Policies FG 7.1 and 5.13 require development within SDAs to provide infrastructure, including onsite roads, and government services that are fiscally neutral. They also require the developer to pay for its share of off-site transportation impacts on a pro rata basis. Construction of the Spine Transportation Network is required by Policy FG 5.7 to be funded solely by the owner/developer. These policies together with the urban village development pattern led Mr. Metcalf to the opinion that the FLP will not disproportionately increase the cost in time, money and energy of providing and maintaining facilities and services. IX. By establishing SDA areas and buffer requirements in Policy FG 2.19 for perimeter boundaries and wetlands, the FLP establishes clear separations between rural and urban areas. X. The FLP would discourage and inhibit the redevelopment of existing neighborhoods and communities, in Mr. Pelham's opinion, because it will compete with all other urban areas for residential and nonresidential growth. Joel Ivey, who has worked on many amendments to the Volusia County Comprehensive Plan, testified that he was not aware of any areas in the County in need of re-development or any infill areas with which the FLP would interfere. The Petitioners did not identify any areas in which the FLP will discourage development opportunities covered by the indicator. XI. Indicator XI is not triggered. The FLP encourages a functional and attractive mix of uses. It requires a mix of residential and nonresidential uses in the SDA districts, a jobs-to-housing ratio, placing lands in conservation easements, walk-ability, compact development, and a hierarchy of street systems to foster connectivity and pedestrian mobility. XII. Indicator XII is not triggered. The FLP promotes accessibility among linked and related land uses with interlinked multimodal roadways and paths, including the Spine Transportation System, walkways and bike paths. XIII. The FLP preserves significant areas of functional open space. It provides for passive recreation open space in RBOS areas. It provides expanses of functional open space areas for wildlife habitat. The Farmton Site, currently private property used primarily for silviculture that can be developed with more than 4,600 homes, under the FLP will place at least 36,000 acres in functional open space in perpetuity. It will conserve the site's most environmentally-sensitive lands and establish a network of wildlife corridors. Development Patterns and Urban Forms Section 163.3177(6)(a)9.b declares that a future land use element or plan amendment "shall be determined" to discourage the proliferation of urban sprawl if it incorporates a development pattern or urban form that incorporates four or more factors listed in the statute. The development patterns or urban forms are listed by roman numerals, I through VIII. I. The FLP promotes conservation and avoids adverse impacts to the most significant natural resources on site. It does so by placing the most significant natural resources in GreenKey and MRBOS, locating development in the SDAs so as to keep it out of the most ecologically significant areas on the Farmton Site, providing protections to the Southwest Wildlife Corridor, and deeding the Deep Creek Conservation area for permanent preservation. Any development within an SDA will be subject to development controls that first require impacts to wetlands to be avoided. If impacts cannot be avoided, only wetlands of lower ecological significance may be impacted, and the impacts must be mitigated to achieve no net loss in function and value. Policy FG 2.19 includes several buffer requirements. Other natural resource protection mechanisms include Policy FG 2.7 which promotes habitat connectivity and requires RBOS to minimize habitat fragmentation. Policies FG 2.10 and 2.11 require a conservation management plan. Policy FG 2.5 and 2.5b. require a forestry management plan and a bear management plan. II. The FLP promotes the efficient and cost-effective provision or extension of public infrastructure and services based upon findings above. III. The third development pattern is present. The FLP includes several provisions that promote walk-ability and connected communities, including Policies FG 3.1; 3.4g; 3.6e; 3.7a-d, h, and j; 5.1;, 5.3; 5.5; 5.6; and 5.7; and, the Spine Network Map. The SDA district policies provide for compact development and a mix of uses at densities and intensities that support a range of housing options and transit options. The FLP requires park-and-ride lots for bus stops, which supports a form of mass transit, and requires multimodal options, such as sidewalks, bike paths and multi-use paths that accommodate different transportation options such as golf carts and bicycles. Policies FG 3.1e (applicable to all SDA districts), 3.4 (Gateway) and 3.7k (Villages) require housing diversity and choice through a mixture of housing types and price points. IV. The fourth development pattern is present as the FLP promotes water and energy conservation. Policy FG 4.2c requires various conservation measures and water neutrality. The multimodal components and employment centers required by the FLP will reduce vehicles miles and promote energy conservation. V. The fifth development pattern is present if the word "preserve" is interpreted to allow agricultural and silviculture activities to continue, rather than mandate that they continue. Policy FG 2.2 allows agriculture activities to continue, but does not require or guarantee that they will continue in perpetuity. Id. Policies 2.2, 2.5a, 2.11g, 2.12f, 2.23, and 3.13 ensure that agriculture may continue. The timberland soils in GreenKey and MRBOS will be preserved. VI. The sixth development pattern is present. Policies 1.3, 1.7, 2.10, 2.11, 2.15, 2.4, 2.6, 2.8, 2.8, 2.5, and 2.16 preserve open space and natural lands. The conservation easements for GreenKey will preserve open space in natural lands. MRBOS and RBOS will provide open space areas in natural lands. Parks in RBOS will provide public open space and passive recreational areas. The SDA parks also will provide active recreational areas. VII. The seventh development pattern is present. The residential and non-residential allocations are balanced and are comparable to those in other master-planned communities. The jobs-to-housing ratio requirement in Policy FG 3.10 ensures a 1:1 balance at build-out and provides a mechanism to ensure that the balance does not drop below 0.65 during development. Gateway Policy FG 3.4d appropriately targets interstate commerce given its proximity to the I-95 and State Road 442 Interchange. VIII. The eighth development pattern is present. The FLP remediates the ranchette pattern allowed under the current Plan over the site. It also provides an innovative urban village development pattern, as well as transit oriented development. Internal Inconsistency Future Land Use Element Future Land Use Objective 1.1.3 in the Current Plan states: "Volusia County shall limit urban sprawl by directing urban growth to those areas where public facilities and services are available inside designated service areas and within urban areas." Joint Ex. 1, page 29 of 109. Future Land Use Policy 1.1.3.5 in the current Plan provides that: New urban development shall be located inside an urban designated area where a full range of urban services exist or are planned and with direct access to arterials and mass transit routes sufficient to handle existing and future development. Joint Ex. 1, page 30 of 109. Policy 1.1.3.6 provides: Id. Requests for land use map amendments will be reviewed using the urban sprawl indicators contained in Rule 9J-5.006(5)(g). Requests that exhibit a presence of a majority of the indicators shall be concluded as to encourage urban sprawl. Mr. Pelham concluded the FLP was inconsistent with these two policies because the Farmton Site is in a remote, rural area outside of urban areas and away from existing or planned urban services. The basis of the opinion is contradicted by the Farmton amendments to the Brevard County Comprehensive Plan now in effect. While rule 9J-5.006(5)(g) no longer exists, Mr. Pelham testified as to why the FLP constitutes urban sprawl. When evaluating whether a plan amendment is consistent with a provision in the plan, including a policy, the plan should be considered "as a whole." Tr. 222. As Mr. Pelham testified, "a common mistake in interpreting comprehensive plans is that policies are lifted out of context, considered in a vacuum without regard to the plan as a whole . . . ." Id. Mr. Pelham's approach is sanctioned by the Current Plan's provision that governs "Plan Interpretation" found in Chapter 21 of the Current Plan entitled "Administration and Interpretation." In particular, it is consistent with a statement that appears in the Introduction of the Current Plan as one of three guidelines or "statements which represent the underlying assumptions which support the Plan preparation." Joint Ex. 1, Introduction, page 3 of 5. That statement is "Guideline Three: The Comprehensive Plan will be construed as a complete document and no specific goal, objective, policy or recommendation shall be used independently." Joint Ex. 1, Introduction, page 4 of 5. Guideline Three is emphasized by its restatement in a quote from the Current Plan's Introduction in the provision governing "Plan Interpretation." See Joint Ex. 1, Chapter 21, page 2 of 7. The Current Plan does not prohibit urban development activities within NRMA. To the contrary, the Current Plan allows "Low Impact Urban," as defined in Policy 12.2.2.1c on lands within NRMA. See Joint Ex. 1, Chapter 12, page 8 of 16. The FLP directs development to certain areas within NRMA and away from the most environmentally sensitive lands in NRMA. There is a fair argument advanced by Miami Corporation, the County and VGMC that the FLP is coordinated with NRMA, is consistent with its objectives as to the bulk of the site and does not conflict with the Current Plan's Objective 12.2.1: "To provide for the protection of areas determined to be environmentally sensitive, and to direct growth away from such areas." Policy 12.2.1.2 requires the County to promote land use activities compatible with NRMA. The policy discusses the land use categories of ESC, FR and Low Impact Urban, among others. The County's planning and development services director for the County construes the uses under ESC, FR, and Low Urban Impact as not the only land uses allowed within NRMA. The critical determination is whether a land use is NRMA-compatible. Consistent with the Current Plan, Policy FG 2.1 states that the whole site is located within NRMA and the NRMA policies apply if they are more protective or stringent than the FLP's policies. The FLP provides more protection for the most environmentally sensitive areas on the Farmton Site than is provided under NRMA. Examples are the FLP requirement for a wider buffer and a minimum of 75 percent open space. Policy 1.3.1.28 forbids amendment of the FLUM not adopted in conjunction with the required Evaluation and Appraisal Report ("EAR") except under five conditions expressed in the policy. The FLUM amendment by the FLP was not in conjunction with an EAR. The five conditions, all of which must be met, therefore, are: Population projections have been revised, and accepted by the County and FDCA; Justification is provided for the expansion of the urban boundary; Compatibility with the character of the area; Availability of the full range of all urban services, including adequate potable water supply and facilities, to accommodate inclusion in an urban area; and, Documentation is provided that urban expansion will not be in conflict with the intent of the Natural Resource Management Area and Environmental Core Overlay. Joint Ex. 1, Chapter 1, page 41 of 109. Testimony at the 2010 Hearing established that the County's population projections were rejected by DCA because they were not based on a professional methodology. The projections were not accepted by the Department in the interim between the 2010 and 2011 Hearing. Mr. Pelham testified that "[t]he Department has never accepted them." 2011 Hearing, tr. 242. The Department's planning function, including review of comprehensive plan amendments and compliance determinations, was transferred by the 2011 Legislature to the Department of Economic Opportunity. The Current Plan does not establish an urban service boundary. Mr. Ivey opined that the FLP is compatible with the character of the area because of the 200-foot wide buffers that exist between the SDA and GreenKey areas. The FLP provides for the City of Edgewater and Farmton Water Resources to provide central water and sewer, and there is adequate water supply. The FLP is consistent with NRMA and ECO because it achieves permanent protection of the key ecological resources on-site. The 11,000 acres of land on the Farmton Site under the ECO are entirely preserved. Conservation Element Policies Petitioners allege that the FLP is inconsistent with Conservation Element Policies 12.2.1.1, 12.2.1.2, 12.2.2.5, 12.2.2.7 and 12.2.3.2. The "Overview" section of the Conservation Element opens with the following paragraph: The Conservation Element provides the framework for the preservation, protection, and enhancement, of the County's natural resources. As such, the goals, objectives and policies outlined in this Element are strongly intertwined with other elements in the Comprehensive Plan relating to land use, utilities, recreation and open space, transportation and coastal management. It is the intent of this Element to provide a basis for responsible decision making for the appropriate use of natural resources when confronted by growth and corresponding development, as well as the identification and preservation of ecologically irreplaceable resources. Joint Ex. 1, Chapter 12, at page 2 of 16. Objective 12.2.1 is: "To provide for the protection of areas determined to be environmentally sensitive, and direct growth away from such areas." Id. at page 7 of 16. Policy 12.2.1.1, in pertinent part, provides that "existing, relatively uninterrupted expanses of natural resources contained within the County shall be managed as an individual unit, providing natural resources the highest degree of protection in land development decisions and planning. These lands shall comprise the NRMA established in the Future Land Use Element. Mr. Pelham views the FLP as not managing the natural resources on the Farmton Site as a unit because it allows development to occur in eight different nodes of development spread out across the property. The development that is allowed, therefore, is fragmented. Mr. Pelham, moreover, sees the FLP as far less protective than the Current Plan because it does not retain protection of the NRMA. By eliminating low-density land use classifications in the SDAs, and replacing it with a large city, the effect on the more protective NRMA designation in his view, is that the FLP "retains the shell and takes out the meat." Tr. 271. In contrast, experts for the County and Miami Corporation see just the opposite. By confining development in the SDAs, which have additional internal protections provided by RBOS and MRBOS designations, and preserving in perpetuity up to 80 percent of the Farmton Site with special protections for wildlife corridors, the FLP provides permanent protection for the most environmentally-sensitive land on site. Policy 12.2.1.2 establishes the three low-density categories that currently apply in the NRMA area: ESC, FR and Low Impact Urban. Replacing the low density use classifications with the FLP has the benefit of protecting the Farmton Site from ranchette-type development with the urban village development pattern that provides the conservation benefit of permanent protection of the most environmentally sensitive lands on site. Objective 12.2.2 is "[t]o minimize, and eliminate where reasonably achievable, impacts to ecological communities which degrade their natural physical and biological functions as a result of land development activities." Id. at page 8 of 16. Policy 12.2.2.5 provides, "The County shall require clustering of dwelling units and/or open space for land development projects which contain environmentally sensitive lands and critical habitats within its project boundaries, in order to preserve these resources." Id. The policy is the most detailed rural clustering plan in Florida. The FLP is viewed by Mr. Pelham as inconsistent with the policy because of the allocation of multiple development nodes spread out over the Farmton Site. Ms. McGee sees a distinction in the language of the policy when compared to the FLP. "The important distinction is that this policy specifically refers to land development projects versus land planning projects." (emphasis added). Tr. 445. Petitioners contend there is no inconsistency because the aim of the policy is achieved since the most environmentally sensitive land is preserved in perpetuity by the FLP, functional and natural open space is set aside, and wetland buffers are provided in the FLP. Policy 12.2.2.7 requires the County to coordinate with appropriate governmental entities to protect environmentally sensitive lands that extend into adjacent counties and municipalities. Michael McDaniel testified at the 2010 hearing that the FLP allows the Gateway development to be adjacent to a 3,500 acre conservation area designated by the City of Edgewater as part of the Restoration DRI. Development allowed by the FLP in the Gateway SDA was determined by DCA initially to be not compatible with the resources in the conservation area and the designation of the area by the City of Edgewater. The Original Amendment, therefore, failed to reflect the intergovernmental coordination required by the policy in his view. At his deposition conducted prior to the 2011 Hearing, Mr. McDaniel testified that after the Remedial Amendments the Gateway Project would still be just south of the conservation land designated by the City and that nothing specific had been done in the Remedial Amendments to address the inconsistency with the policy. Policy FG 3.4 in the FLP includes several provisions relating to coordination with adjacent jurisdictions, two of which specifically refer to the Restoration DRI. Policy FG 2.11q requires the Farmton conservation management plan to be coordinated with the natural resource protection measures within the RBOS and Conservation Areas of Restoration. This requirement will ensure maximum open space connectivity between the Restoration development and any development in the northern portions of the Farmton site. On the southern end of the Restoration site (just to the north of the Farmton Site) is an area designated to be used for utilities. That area directly adjoins one of the three Gateway SDAs. The Restoration site includes a significant amount of degraded areas in need of restoration. East and west of the Gateway SDAs, there will be broad corridors that connect with the Restoration site. The Restoration DRI is subject to a conservation management plan requirement that can be coordinated with the FLP's CMP. During the Original Amendment process, the County coordinated with the City of Edgewater. As a result of discussions between the County and the City, the FLP incorporates policies to address common water supply issues and future coordination. The City has no objection to the FLP. The Amendment is internally consistent with Conservation Policy 12.2.2.7. Objective 12.2.3 is "[t]o eliminate any net loss of wetlands and prevent the functional values of such wetlands to be degraded as a result of land development decisions." Policy 12.2.3.2, in pertinent part, provides that "[p]roposed activities within the NRMA . . . shall avoid adverse impacts to wetlands and their associated natural, physical and biological functions, except in cases where it can be demonstrated to be in the overriding public interest." The policy also calls for mitigation in cases of overriding public interest. Wetland features are present in abundance and interspersed throughout the Farmton Site. Respondents contend that a reasonable interpretation of the policy is that it applies to projects at the time of decisions on applications for development orders rather than planning decisions such as adoption of the FLP. Since the policy, under the interpretation, does not apply to the FLP, the policy cannot be inconsistent with it. Public School Facilities Public School Facilities Element Policy 3.1.4.3 requires a finding by the School Board that adequate school capacity will either be timely planned or constructed if there is inadequate capacity at the time of a land use change. Petitioners contend that FLP Policies FG 6.1 and 6.2 are inconsistent with Public School Facilities Element 3.1.4.3. The FLP was coordinated with the Volusia County School District ("School Board"). The School Board reviewed the proposed FLP and revised its school provisions. At the time of the Original Amendment, the School Board, based on its independent data and analysis, determined that there is adequate school capacity for a maximum of 2,287 residential units through 2025. Based on school capacity, Policy FG 1.4 limits residential development through 2025 to 2,287 units in the Gateway district. The policy further restricts residential density in the Gateway district to a maximum of 4,692 units. "[A]ny increase in the density of the Gateway district above the 2,287 units [for which there is adequate school capacity now] and up to 4,692 units [the number of units allowed] shall not be effective until such time as the school district has issued a finding of school adequacy." Joint Ex. 7, Tab D-2, at page 7 of 49. Policies FG 6.1 and 6.2 reiterate the 2,287 unit cap and do not allow additional residential units until the School Board finds adequate capacity to provide for additional units. Other FLP Policies "Fiscal neutrality means the costs of additional school district and local government services and infrastructure that are built or provided for the SDA districts shall be funded by properties within the approved SDA districts." Joint Ex. 7, Policy FG 7.1, page 42 of 49. Policy FG 7.1 requires each development within an SDA to provide adequate infrastructure that meets or improves level of service standards or will result in a fiscal benefit to the County and its municipalities. Policy FG 5.13 authorizes mitigation for offsite transportation impacts through proportionate fair-share or proportionate share payments. The policy requires proportionate fair-share or proportionate share payments to mitigate the offsite transportation impacts. State law authorizes proportionate-share contributions or construction to satisfy transportation concurrency requirements of a local comprehensive plan under certain circumstances. See § 163.3180(5)(h)3. There is no definition in chapter 163 of "fiscal neutrality." Nor is there a requirement that a developer pay for more than its pro rata share of impacts. Capital Improvements Element/Public Facilities With regard to "capital improvements and public facilities," Petitioners make three allegations that the FLP is not in compliance. First, Petitioners allege the FLP fails to demonstrate the availability of public facilities and services, as required by sections 163.3177(3)(a), 163.3177(6)(a)2.d., and 163.3177(6)(a)8.a. Second, pointing to sections 163.3177(6)(a)2.d. and 163.3177(6)(a)3.e., they allege that the FLP improperly defers data and analysis on which to base the adequacy of public facilities and services. Third, they allege the revised water supply data and analysis used to support the Remedial Amendments do not demonstrate the availability of sufficient water supplies. The term "public facilities" is defined in section 163.3164(38). It "means major capital improvements, including transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational facilities." Section 163.3177(1)(f), requires all mandatory and optional elements of the comprehensive plan and plan amendments to be based on relevant and appropriate data and analysis. Section 163.3177(6)(a)2.d. requires the future land use element and plan amendments to be based on surveys, studies and data regarding the area as applicable including the availability of water supplies, public facilities and services. FLUM amendments are required by section 163.317(6)(a)8.a. to be based on an analysis of the availability of facilities and services. The FLP is supported by adequate public facility data and analysis. The data and analysis supporting the Original Amendment includes transportation network maps that generally depict and project external roadways and transportation improvements that will need to be built to serve development under the Amendment through 2025 and through 2060. It also includes an evaluation of current and future roadway level of service standards. The Original Amendment includes data and analysis that evaluate potable water and sanitary sewer demand. The water and sewer analysis includes separate charts for build-out in 2025 and in 2060 which assume maximum residential potential and expected nonresidential development types. The data and analysis evaluate impacts of development under the FLP in the short term and in the long term. A transportation analysis was submitted as part of the proposed Amendment package that evaluates impacts on the level of service standards of roadways through 2014 (5 years from the submission of the original Amendment) and 2025. Tables 12 and 13 of the analysis identify roadway improvements needed to maintain level of service standards in 2014 and 2025, respectively, assuming maximum development under the existing land uses and under the Amendment. The transportation analysis assumes full maximum development potential under the Amendment, not realistic growth projections. The analysis therefore evaluates 4,692 residential units and 820,217 square feet of nonresidential development, the maximum development potential under the current land uses. The original water demand analysis applies the Amendment's water conservation policies, as encouraged by the SJRWMD. That analysis estimates a water demand of 1.36 million GPD in 2025 and 6.714 million GPD in 2060. Another water demand analysis compares onsite development scenarios for ranchettes, a commercial nursery, and development under the FLP. The analysis demonstrates development under the FLP would use substantially less water than would development of ranchettes and a commercial nursery. The Remedial Amendments include revised water supply data and analysis that was requested by, and coordinated with, the SJRWD to more closely reflect the water conservation policies in the FLP. The Original Amendment's water supply analysis assumes usage of 250 GPD per residential unit, whereas the Remedial Amendments' revised water supply data and analysis assume a reduced usage of 175 GPD per residential unit. The SJRWMD accepted the revised data and analysis. Petitioners dispute the data and analysis' use of 175 GPD as underestimating demand, but they do not dispute the data and analysis' nonresidential usage rates. The use of 175 GPD is professionally accepted and the data and analysis demonstrate the availability of adequate potable water supplies. The estimated usage of 175 GPD is achievable under the FLP's conservation measures and is a conservative rate based on the FLP's provision for many multi- family units which have a lower GPD than single family units. Applying either 250 GPD or 175 GPD, the site's groundwater source of potable water, estimated to be 9.6 million GPD, will be adequate to provide potable water for maximum residential and nonresidential development under the Amendment while meeting the contractual obligation to provide 2.75 million GPD to the city of Titusville. Petitioners also dispute the reclaimed water analysis assumption in the revised water supply data and analysis that 20 percent of the SDAs will be covered with stormwater facilities. "Twenty percent of the developed landscaped is a lot of land devoted to stormwater treatment." Tr. 142. Mr. Diamond, Petitioners' expert, suggested an assumption of seven to eight percent of the SDAs devoted to stormwater treatment is more appropriate. Civil engineer Mark Dowst, however, demonstrated the 20 percent assumption is based on his experience designing hundreds of stormwater systems and is professionally acceptable. The general range, in his opinion, is 12 to 15 percent. In areas with flood plains or a high water table, such as the Farmton Site, the amount of land devoted to stormwater treatment must be more than the general range. The School District determined there was adequate school capacity through 2025 for a maximum of 2,287 residential units authorized under the current land uses. The School District also found the Amendment addresses and protects the School District's interests. Based on the School District's finding, Policy FG 1.4 limits residential development through 2025 to 2,287 units within the Gateway district until the School District issues a finding there is additional capacity. Policy FG 6.2 recognizes the School Board has not determined there is capacity for more than 2,287 units and therefore "no finding of school adequacy can be issued until and unless the Interlocal Agreement is amended to allow school capacity to be provided within the concurrency service area in which the Farmton Local Plan is located." Joint Ex. 7, Tab D-2, page 40 of 49. The Amendment reacts appropriately to relevant school capacity data and analysis. Petitioners did not demonstrate how the FLP is inconsistent with applicable public facility requirements. They did not demonstrate that the FLP triggers a need under the New Act to amend the Capital Improvements Element. In order to encourage the efficient use of public facilities, section 163.3177(3)(a) mandates that the comprehensive plan contain a capital improvements element designed to consider the location of public facilities that covers at least a 5-year period and that sets forth: "A schedule of capital improvements [the "CIS"] which includes any publicly funded projects of federal, state or local government, and which may include privately funded projects for which the local government has no fiscal responsibility. Projects necessary to ensure that any adopted level-of-service standards are achieved and maintained for the 5-year period must be identified as either funded or unfunded and given a level of priority for funding." § 163.3177(3)(a)4. Policy FG 8.1 prohibits the issuance of any building permit within five years of the Amendment's effective date. This provision clarifies that the Capital Improvement Schedule ("CIS") need not be amended yet. There is no requirement the CIS include public facilities that are privately owned or operated, or are owned or operated by a different local government. None of the infrastructure to be provided by Farmton Water Resources LLC or the City of Edgewater under the numerous policies under Objective 4 need be included in the CIS. The evidence shows it is not realistic to expect development impacts to occur within five years from the adoption of the Remedial Amendments on February 18, 2011. Section 163.3177(3)(b) requires that the capital improvements element be reviewed annually. The CIS will be amended in the future as needed based on projected public facility impacts of future development proposals. Section 163.3177(3)(a) requires less detail for long-range public facility planning than for the five year CIS. The Amendment includes an adequate amount of detail for long range planning for public facilities. Policy FG 4.14 authorizes Farmton Water Resources, LLC, and the City of Edgewater to provide water to the site. Policy FG 4.19 identifies the City of Edgewater as the provider of potable water and wastewater for Gateway. The data and analysis include a utility service area map showing the service area. Policy FG 4.18 requires Farmton Water Resources, LLC, to provide off-site and on-site potable water, nonpotable water, and wastewater. That policy and Policy FG 4.21j list various infrastructure improvements that will be needed to provide those services. At this time, it is not possible to identify where public facilities will be located or their costs. Policy FG 8.3 requires all SDA development to undergo master development-of-regional impact review process, which will ensure infrastructure, including transportation, schools, stormwater, and water supply, to be a condition of the master DRI development order. Policy FG 8.7 includes a requirement that each increment of development address the adequacy of public facilities and services such that they are available to accommodate development and maintain or improve level of service standards. The master DRI requirement is a reasonable strategy to ensure infrastructure will keep pace with development. Water Supply Petitioners contend that the increased development allowed under the FLP was not anticipated by the water supply plan of the SJRWMD, or of any local government, and that a concurrent water supply plan amendment is required. They further argue this omission demonstrates the FLP is not based on the availability of water supplies. Petitioners also allege the Amendment is inconsistent with the Plan’s Potable Water Sub- Element Policies 7.1.3.1 and 7.1.3.3. Those issues were raised by the Department and SJRWMD, but were resolved to their satisfaction in the Remedial Amendments. SJRWMD proposed Remedial Policies FG 4.14, 4.15, 4.18, and 4.21. The Remedial Amendments also included additional data and analysis, which was accepted by SJRWMD. The Original Amendment is supported by data and analysis demonstrating there is a new source of potable water located on the site. The new water source is groundwater contained within the Upper Floridan aquifer and is of potable water quality. The potable water supply analysis demonstrates the new source of potable water is adequate to supply more than enough potable water to supply development under the FLP. The supply is conservatively estimated to be able to produce a sustainable 9.6 million GPD, while the projected demand for development under the FLP is estimated to be 6.76 million GPD. Future land use plan amendments must be based on data regarding the area including "[t]he availability of water supplies . . . ." see § 163.3177(6)(a)2.d. Adequate potable water supply must be shown to be available but need not yet be a permitted source. Regardless of whether the new groundwater source is identified in a regional or local water supply plan, the FLP is supported by a demonstration of an adequate water supply, as required by section 163.3177(6)(a)2.d. Non-inclusion in a water supply plan does not negate the fact that a new source of potable water has been discovered and demonstrated to be available. Section 163.3177(6)(c) requires each water management district to adopt a regional water supply plan every five years and for each local government to incorporate relevant facilities contained in the regional plan into its comprehensive plan by adopting a local water supply plan within eighteen months after the regional water supply is adopted. The FLP was adopted between updates of the SJRWMD regional water supply plan and local water supply plan updates. The SJRWMD plan was required to be adopted in 2005, but was not adopted until February 2006. The mandatory five-year update for the SJRWMD was due in the fall of 2010, but has been delayed. The County’s required water supply facilities work plan was adopted on June 8, 2009. There is no requirement for the county to amend its Water Supply Facilities Work Plan before the SJRWMD amends its regional water supply plan. Potable Water Sub-Element Policy 7.1.3.3 requires the County to review its Water Supply Facilities Work Plan annually and update it as necessary. The FLP recognizes the County’s obligation to later amend its Water Supply Facilities Work Plan and is consistent with it. Policy FG 4.15 requires Farmton Water Resources, LLC, to coordinate with the County, municipalities and the SJRWMD to propose additions to their applicable water supply work plans. The unchanged portion of revised Policy FG 4.18 expressly requires projects to be included in the annual updates as those projects are identified and approved. There is no statutory requirement that such availability be included in a water supply project list until the county and regional water supply plans are updated. Nonetheless, the report prepared by Dr. Seereeram demonstrated through data and analysis that sufficient on-site water will be available. Potable Water Sub-Element Policy 7.1.3.1 requires the County to maintain a Water Supply Facilities Work Plan that is coordinated with the SJRWMD water supply plan. The FLP is consistent with this policy because Policy 7.1.3.1 does not address the situation posed in this case by the delay of the update to the SJRWMD water supply plan. Policy FG 4.18, moreover, requires coordination after that update is made. Section 163.3177(6)(c) is silent as to the need to identify potable water projects between water supply amendment cycles, and as to the format a local government must use to identify water supply projects. Petitioners did not demonstrate the FLP is required to include amendments to the water supply plan, as opposed to a later update of the water supply plan, as required by Policy FG 4.18. They also did not demonstrate what legal requirement necessitates additional information, beyond the identity of the water source and its demonstrated adequacy, in order for the Amendment to be based on relevant and appropriate data and analysis to demonstrate the availability of a water supply. Public Schools The County is required by section 163.3177(6)(a)7 to identify the land use categories in which public schools are an allowable use. The School District is responsible for identifying sites for future schools. In keeping with its responsibility, the School District has mapped future school sites needed through 2025. It has not planned, however, for new school sites needed through 2060. Objective 3.2.2 governs and requires establishment of "School Concurrency Service Areas," Joint Ex. 1, ch. 3, page 6 of 12. They are areas "within which an evaluation is made of whether adequate school capacity is available based on the adopted level of service standard." Id. Policy 3.2.2.8 requires "[r]equests to develop properties within the central school concurrency service areas at residential densities and intensities greater than the current land use or zoning designations . . . . [to] be done via a comprehensive plan amendment consistent with the Volusia County Charter provision 206 regarding school planning." Id. at page 7 of 12. Section 206 required the county council not later than September 30, 2007, to adopt an ordinance to the effect that any plan amendment allowing increased residential density "may be effective only if adequate public schools can be timely planned and constructed to serve the projected increase in school population." DCA Ex. 10. The policy further requires the amendment to demonstrate how school capacity will be met consistent with the terms of the First Amendment to the Interlocal Agreement for Public School Facility Planning, effective July 2007, and Section 206 of the Volusia County Charter. The FLP is consistent with Public Schools Policy 3.2.2.8 because it limits residential development to 2,287 units until there is a School District finding of additional capacity. Policy FG 8.3g. requires each increment of development in the master development order to include provision for schools, thus further ensuring adequate public schools will be timely built and available to serve all future development. The use of a plan amendment to include limitations on development based upon the availability of public facilities has been accepted by the Department. Policy FG 6.2 requires an amendment to the Interlocal Agreement before the School District can find there is additional capacity. This policy is coordinated and consistent with Policy FG 3.2.2.8's requirement that plan amendments be consistent with the Interlocal Agreement. A plan amendment creates an internal inconsistency when it has the effect of conflicting with an existing provision of the comprehensive plan, but if an amendment expressly creates an exception or waiver to a general rule set forth in the plan, it does not create an internal inconsistency. Related school concurrency Public Schools Objective 3.2.1 requires the County to "ensure that the capacity of schools is sufficient to support residential subdivisions and site plans at the adopted level of service standard within the period covered by the five-year schedule of capital improvements." Joint Ex. 1, ch. 3, page 5 of 12. Since school concurrency is a five-year planning concern and no development should occur within the next five years, there is no inconsistency between the FLP and Policy FG 3.2.2.8. Policy FG 3.1.4.1 requires the County to "take into consideration" School District comments and findings on the availability of adequate school capacity in its evaluation of plan amendments. The FLP is consistent with this policy. The County not only took the School District's comments and findings into consideration, but the FLP limits development to current and future findings of adequate school capacity made by the School District through Policy FG 1.4. Objective FG 6 in the FLP governs "School Planning and Concurrency." It states: "The Sustainable Development Area districts shall be designed and planned to ensure that the educational facilities are integral components within the community and that adequate school capacity can be timely planned and constructed to serve the anticipated population." Joint Ex. 7, Tab D-2, page 39 of 49. The school policies that implement Objective FG 6, Policies FG 6.1 through 6.8, were drafted by the School District and are based on the best available data and analysis about future school sites, which currently is available from the School District only through 2025. Meaningful and Predictable Standards Petitioners contend that Policies FG 2.16 and FG 3.10 (untouched after the Original Amendment), and Policies FG 2.4, 2.5, and 2.18 (as revised by the Remedial Amendments) fail to establish the meaningful and predictable standards required by section 163.3177 (1). The statute, in pertinent part, provides: The plan shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations. Policy FG 2.16 requires a Community Stewardship Organization ("CSO") to be established and governed by seven directors. The policy provides the CSO's governance board of directors is to be composed of seven members, four of whom must be representative of statewide or national non-profit environmental/conservation organizations in existence at the time of the adoption of the FLP such as the Nature Conservancy, Florida Audubon Society, Trust for Public Lands, and the Florida Wildlife Federation. The owner shall be represented on the board, and the other two members may include representatives of public agencies, stakeholders and public citizens who participated in the development of the FLP. The policy also lists various functions the CSO may or must perform, including taking title to the GreenKey and RBOS areas or co-holding a conservation easement. The CSO is mandated to participate in development of the CMP. The policy also requires all current and future deeds of the Deep Creek Conservation Area, which is within the West Mitigation Bank, to be conveyed to the CSO. Policy FG 2.16 identifies specific activities for the CSO to undertake, and contains meaningful and predictable standards to guide the CSO's composition and actions. Policy FG 3.10 requires a jobs-to-housing ratio of one job per one residential unit. The policy also states Gateway development shall be Phase One and is exempt from the ratio requirement. Development orders for subsequent phases must include milestones for achieving the ratio. The ratio must be monitored at least annually. If the ratio falls below 0.65 (0.65 job for each housing unit), the policy requires development approvals to cease until a remedial plan is developed and approved. Policies FG 8.3j and Policy FG 8.4j require any development orders to include provisions to implement the jobs to housing ratio. Policy FG 3.10 does not allow the remedial plan to achieve any other ratio. A plain reading of Policy FG 3.10 as a whole, including the requirement to monitor compliance with the ratio, reveals it to be a remedial plan that must achieve the 1:1 ratio referred to in the policy. Policy FG 3.10 identifies specific strategies to achieve a balance of housing and employment opportunities, and contains meaningful and predictable standards to guide its implementation. There is no requirement for a CSO and there are no compliance criteria to guide the composition and roles of entities such as the CSO, nor does the law require or provide criteria for jobs to housing ratio. Policy FG 2.4 was revised by the Remedial Amendment to create MRBOS areas and depict them on Map Figure 1-12N so as to provide certainty as to where certain portions of RBOS lands will be located. MRBOS lands have the effect of expanding the GreenKey designated areas for the Cow Creek Corridor and the Southwest Wildlife Corridor. The Policy states MRBOS lands will not be subject to the RBOS public access plan, but will be subject to the Black Bear management plan. The Remedial Amendment's details for the new MRBOS areas are predictable and meaningful. The changes to Policy FG 2.5 clarify that the Southwest Wildlife Corridor must be "consistent with a forestry management plan designed to provide prescribed fire, promote dense understory vegetation such as palmetto and [be] consistent with the Black Bear Management Plan" as required in original Policy 2.5b. Petitioners did not present any competent substantial evidence that this guidance for the forestry management plan does not provide adequate meaningful and predictable standards. Policy FG 2.18, "Transportations Policies and Natural Resource Protection," addresses the arterial roads that traverse the GreenKey lands and provides design guidance to avoid and minimize conflicts between motor vehicles and the movement of wildlife. Section "a" of the policy, which was unchanged by the Remedial Amendment, includes the following non-exhaustive list of tools to minimize this conflict: landscaping techniques, fencing, speed limits, wildlife overpasses or underpasses, bridges, and elevating roadways. This section applies to the three arterial roads shown on the Spine Network Map; Williamson Boulevard, Maytown Road, and Arterial A. The proposed general alignment of Williamson Boulevard does not intrude into the boundaries of the Deep Creek Conservation Area, the Cow Creek Corridor, the Power Line corridor, or the Southwest Wildlife Corridor. Williamson Boulevard runs through, and connects, the largest Gateway SDA and the Work Place, Town Center, and the easternmost village. The Remedial Amendment revises Policy FG 2.18 by creating Sections "b" and "c." Section "b" provides mandatory guidelines that apply only to Maytown Road and Arterial A and requires their design to be based on "best available science" as determined by the FFWCC. Section "c" encourages additional guidelines for Maytown Road and Arterial A subject to the discretion of the roadway designers. As a whole, Policy FG 2.18 provides meaningful and predictable guidance for the designers of the roadways. There are no minimum standards in the New Law for the design of roadways to minimize conflicts with wildlife. With proper implementation, the guidelines in Policy FG 2.18 are reasonably expected to produce the defined outcome of a roadway network that will minimize conflict with wildlife. Audubon’s Charles Lee testified the policies were based on the model policies in the Wekiva Parkway Plan. Mr. Telesco of the FFWCC testified the policies were in line with FDOT policies. Further, the phrase "to the extent practicable" is a known conservation standard taken from the Endangered Species Act. Policies FG 2.4, 2.5, 2.16, 2.18, and 3.10 provide an adequate amount detail for a comprehensive plan amendment, as required by section 163.3177(1).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order that determines the Farmton Local Plan incorporated into the Volusia County Comprehensive Plan through amendments adopted by Volusia County Council Ordinance Nos. 2009-34 and 2011-10 is "in compliance." DONE AND ENTERED this 24th day of January, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2012.
The Issue The issue in this case is whether Brevard County's 1999 Comprehensive Plan Amendments B.12, B.13, and B.14 (the Plan Amendments) are "in compliance."
Findings Of Fact General Besides the introduction of the Plan Amendments themselves and a few other documents, Petitioners case-in-chief consisted of examination of Susan Poplin, a Planning Manager for DCA, as an adverse witness, and the testimony of Petitioner, Charles F. Moehle. Most of Poplin's testimony was directly contrary to the positions Petitioners were seeking to prove. Moehle's testimony consisted primarily of conclusions and statements disagreeing with the Plan Amendments. Petitioners provided no data or analysis in support of Moehle's statements and conclusions. Often, Moehle's testimony did not identify specific errors allegedly made by the County. Much of Moehle's presentation was disjointed and difficult to understand. Petitioners also challenged several items which should have been challenged following prior amendments to the County's Plan. For example, Poplin testified that all of the wetland provisions in the challenged Conservation Element B.12 amendments were part of a prior plan amendment and were not changed by the Plan Amendments. See Findings of Fact 7-8, infra. Standing Petitioners' allegations of standing are in paragraph 6 of the Amended Petition for Formal Review: EFFECT ON PETITIONERS' SUBSTANTIAL INTERESTS Petitioner, MODERN owns property in Brevard County, the value of which will be reduced by THE AMENDMENT. Additionally, petitioners MODERN and MOEHLE own property in Brevard County and pay property taxes in Brevard County. Additionally, THE AMENDMENT will cause property tax receipt's of Brevard County to decline because of the reduction in value caused to MODERN'S, MOEHLE'S, and other similarly situated property in the county. Additionally, THE AMENDMENT will cause MODERN'S and MOEHLE'S property taxes to increase due to the additional government employees required to implement and enforce THE AMENDMENT and due to the fact that the property taxes imposed upon property which are not effected [sic] by THE AMENDMENT will necessarily increase in order to offset the loss of property tax revenue from private property which is devalued as a result of THE AMENDMENT. MOEHLE and MODERN have appeared before the Brevard County Board of County Commissioners at public meetings and hearings as well as communicating (verbally and in writing) with their growth Management/Planning & Zoning Departments concerning these matters for several years. In an attempt to prove Petitioners' standing, Moehle testified that he has been a resident of Brevard County since 1958. He also testified that he is President of and owns a substantial interest in Petitioner, Modern, Inc. He testified that both he himself and Modern own real property in Brevard County, and that, as such, both are taxpayers. Moehle also testified that he is "affected by these regulations." He gave no specifics as to how he is affected. He also did not testify that Modern was affected. Before concluding his brief testimony on standing, Moehle asked the ALJ if he had to "ramble on some more" about standing and was asked whether he submitted "oral or written comments, comments, recommendations or objections to the County between the time of the transmittal hearing for the Plan amendment and the adoption of the Plan amendment." Moehle answered: I submitted during the whole period of this - I attended a number of hearings that I knew about during this whole process and I would say that, yes, I did, but not all hearings. Some were questionable - some of my problems or some of the meetings that the action was taken on. So they do have my comments, they've had my comments from me on various issues complete back before and including the Settlement Agreement. The evidence was that all hearings and meetings relating to the "Settlement Agreement" to which Moehle referred in his testimony occurred prior to the transmittal hearing for the Plan Amendments at issue in this case on November 30, 1999. The referenced "Settlement Agreement" was the Stipulated Settlement Agreement entered into in May 1997 to resolve DOAH Case No. 96-2174GM. The County amended its Comprehensive Plan to implement the Stipulated Settlement Agreement on August 24, 1999, by Ordinance 99-48. By Ordinance 99-52, adopted October 7, 1999, the remedial amendments were clarified to include the correct Forested Wetlands Location Map. Ordinance 99-49 and 99-52 both state that the plan amendments adopted by them "shall become effective once the state planning agency issues a final order determining the adopted amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(9), or until the Administration Commission issues a final order determining the amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(10)." The stated "Justification" for Policy 5.2 of the B.12 Plan Amendments at issue in this case was: "The above language was part of a stipulated settlement agreement between DCA and the County. This agreement became effective after the transmittal of the 99B Plan Amendments." Apparently for that reason, the B.12 Plan Amendments at issue in this case, specifically under Objective 5 and Policies 5.1 and 5.2, underlined the wetland provisions previously adopted by Ordinance 99-48. This underlining may give the misimpression that these wetlands provisions were being amended through adoption of Ordinance 2000-33. To the contrary, those amendments already had been adopted, and all hearings on those amendments already had occurred prior to transmittal of the Plan Amendments at issue in this case. Other than testifying that he attended hearings and made submittals "before and including the Settlement Agreement," Moehle did not specify when he attended, or what if anything he said or submitted. Nor did he offer any testimony or evidence that he appeared on behalf of Modern. No minutes or other evidence were produced for the record showing his appearance or comments, recommendations or objections. To the contrary, Petitioners' evidence indicates that Moehle was not one of the individuals who offered public comment at either the transmittal hearing on November 30, 1999; the Land Use Citizens Resource Group meeting on November 4, 1999; or the Local Planning Agency Adoption Meeting on May 15, 2000. Paragraph 6 of the Amended Petition, also alleged: that the value of property owned by Modern will be reduced; that the Plan Amendments will cause property tax receipts to decline because of a reduction in the value caused to Petitioners' property; and 3) that the Plan Amendments will cause Petitioners' property taxes to increase due to additional government employees required to implement and enforce the Plan Amendments and due to an increase in taxes for properties not directly affected by the Plan Amendments. None of these allegations were supported by record evidence. Notice Petitioners' allegation of improper notice is contained in paragraph 7.I. of the Amended Petition: Petitioners allege that THE AMENDMENT is subject to the notice requirements of Florida Statute subsections 163.3161(18), 163.3181, 163.3184(15), 125.66(2), and or 125.66(4) and that Respondent COUNTY has failed to comply with said statutes. (Several other paragraphs of the Amended Petition also allege inadequate notice. See Findings of Fact 19, 28, 44, 50, 54, 63, 65, and 76, infra.) Petitioners filed copies of the applicable advertisements. Moehle testified that the type was "wrong" and the size was "wrong" - the exact nature of the alleged error was not stated. But review of the advertisements for the transmittal and adoption hearings reveals that both are two columns wide, and the headline appears to be in a very large, bold type. Other than Moehle's general complaint about the type being "wrong," there was no testimony or other evidence that the type is not 18-point. Other aspects of the advertisements do not appear to be challenged by Petitioners. The advertisements themselves show that the transmittal hearing was held on November 30, 1999 (a Tuesday) and that the advertisement was run on November 22, 1999, eight days prior to the day of the hearing. They also show that the adoption hearing was on May 16, 2000 (a Tuesday). The advertisement for the adoption hearing was run on May 10, 2000, six days prior to the meeting. The proof of publication shows that the advertisements were not in a portion of the newspaper where legal notices or classified ads appear and that the Florida Today is a newspaper of general circulation. The evidence also included advertisements for local planning agency hearings and meetings relating to the Plan Amendments other than the transmittal and adoption hearings. These other advertisements appear to have been published in legal ad sections, and the type is smaller than that used for the transmittal and adoption hearings. It appears that Moehle was referring to these advertisements when he said the type and size was "wrong." Species and Wetlands Preservation Versus Promoting Infill Development Paragraph 7.IV. of the Amended Petition alleges: The challenged provisions of the THE AMENDMENT, as set forth herein below, violate the legislative intent and spirit of Fl. Stat. Ch. 163, Part II because they place species and wetland preservations over the stated policy goal of promoting infill and development in areas which have concurrency and infrastructure available. The challenged provisions promote leap frog development by making the development of parcels of private property which have concurrency and appropriate infrastructure but also have any quantity of listed species habitat or wetlands unusable. Fl. Stat. Sections 163.3177(10)(h), 163.3177(11). No evidence was offered supporting the claim that species and wetland preservation were "placed over" the goal of promoting infill. Nor was there any evidence provided by Petitioners to show that leapfrog development or urban sprawl was caused by protecting wetlands. To the contrary, Poplin's testimony discussed urban sprawl and leapfrog development in terms of impacts to services and facilities. She clearly stated: "[T]here are no set priorities. We look at each individual local government on a case by case basis. . . . So . . . [it] depends on the context in which its based [sic] in the plan." Poplin also testified that the County had levels of service in place for facilities and services pursuant to Rule 9J-5.0055(1)(a), and that the County's Plan and the subject Plan Amendments have level of service standards which meet the requirements of Rule 9J- 5.0055(2). Poplin also testified that the County had a Capital Improvements Element which was in compliance with Rule 9J- 5.0055(1)(b). She also testified that there was coordination of the various comprehensive plan elements as required by Section 163.3177. Thus, she concluded, the conservation and capital improvements (infrastructure) elements interacted properly. There was no evidence to the contrary. Section 163.3177(10)(h) states that it is the intent of the Legislature to provide public services concurrently with development. Section 163.3177(11) discusses the legislative intent to have innovative planning to address urbanization, protection of environmentally sensitive areas, land use efficiencies in urban areas and conversion of rural land uses. No evidence of any kind was presented regarding these provisions. Certainly, no data and analysis showing failure to meet these statutory provisions were presented by Petitioners. Listed Species Definition Paragraph 8.I.A.2 of the Amendment Petition states: Listed Species definition - pg 11. This change should not be made because the updated Glossary of the Comprehensive Plan was not made available timely for public review and public comments per the hearing and notice requirements of Fl. Stat. Sections 163.3161(18), 163.3181, 163.3184(15), 125.66(2) and or 125.66(4). Prior to the Plan Amendments, the Conservation Element had a Directive entitled "Wildlife." The "Wildlife" directive stated in part: "Development projects should avoid adverse impacts to species listed as endangered, threatened, or species of special concern." The directive also included a definition of the term "listed species": "those species which are listed as either endangered, threatened or as species of special concern." The Plan Amendments deleted these provisions. The stated Justification for deleting the first provision was: "Objective 9 embodies the intent of this directive." The stated Justification for deleting second provision was: "'Listed species' have been defined in the updated Glossary of the Comprehensive Plan." As in several other places in the Amended Petition, Petitioners complain about lack of notice and an opportunity for a hearing as to the updated Glossary. Actually, it appears that the Glossary was not updated along with the Plan Amendments. For that reason, there were no Glossary changes to be noticed. Although the Glossary was not updated to provide the definition of the phrase "listed species," as indicated in the Justification for deleting it from the Directives, the phrase is commonly used to refer to species are listed as threatened or endangered under various state and federal regulations. Rule 9J-5.013(1)(a)5. requires identification and analysis of natural resources including "species listed by federal, state, or local government agencies as endangered, threatened or species of special concern." Species that are federally listed as endangered or threatened (50 C.F.R., Section 17.11) fall under the jurisdiction of the U.S. Fish and Wildlife Service in accordance with the Endangered Species act of 1973, as amended (16 U.S.C. Section 1531, et. seq.). Listed and unlisted bird species, other than waterfowl and game birds, are also federally protected by the Migratory Bird Act (16 U.S.C. Section 703 et. seq.). The bald eagle has additional federal protection under the Bald and Golden Eagle Protection Act (16 U.S.C. Section 668- 668d). Marine animals (including whales, dolphins, and the West Indian Manatee) are also protected by the Marine Mammal Protection Act of 1972 (16 U.S.C. Section 1361 et. seq.) In addition, 24 species of vertebrates are listed by the State as endangered, threatened or species of special concern and are under the jurisdiction of the Florida Fish and Wildlife Conservation Commission, Chapter 39, Florida Administrative Code. Both snook and Atlantic sturgeon receive further state protection under Chapter 46, Florida Administrative Code. The Florida Endangered and Threatened Species Act, 1977, also protects species listed as endangered, threatened or species of special concern under Chapter 372, Florida Statutes (2000). Chapter 372, Florida Statutes (2000), provides additional protection for the American alligator as defined in the Alligators/Crocodilla Protection Act. Sea turtles and the West Indian manatee are further protected by the State through the Marine Turtles Protection Act (Chapter 327, Florida Statutes (2000)) and the Florida Manatee Sanctuary Act (Chapter 327, Florida Statutes (2000)). Petitioners did not prove beyond fair debate that the phrase "listed species" cannot be understood without a specific definition within the comprehensive plan. Conservation Element Policy 8.5, Protection Of Vegetative Communities Paragraph 8.I.B. of the Amended Petition states: Policy 8.5 - pg 41. This change should not be made because the justification is not correct. These referenced lists were not made available to the public at the relevant public hearing for review and comment in violation of the requirements of Fl. Stat. Section 163.3184. The modification goes beyond the stated intent to merely improve readability and clarify the existing policy in that it actually modifies existing policy. . . . (The last clause was stricken. See Preliminary Statement.) Again, there were no changes to the Glossary to be noticed for hearing. Before the Plan Amendments, Policy 8.9 of the Conservation Element provided that the County would develop a program for the protection of vegetative communities from inappropriate development by 1992. The former provision was replaced with Policy 8.5, which revises the action date to 2002 and states that the County shall protect vegetative communities from inappropriate development. G1 and G2 vegetative communities, as contained in the Florida Natural Areas Inventory, were added to S1 and S2 communities (which were already in the Plan) for consideration for protection. Poplin testified that the G1 and G2 categories were defined by the Florida Natural Areas Inventory and were synonymous with the S1 and S2 categories which were already defined in the Plan. The adopted "Justification" for new Policy 8.5 itself indicates that the addition of the G1 and G2 categories "did not add additional vegetative communities that may be considered for protection." In other words, nothing actually changed as to the vegetation (or types of vegetation); only the nomenclature or titles of categories changed. Conservation Element, Objective 9 and Policy 9 Species of Special Concern, Crucial/Critical Habitat Paragraph 8.I.C.,D., and E. of the Amended Petition states: Objective 9 and Policy 9, including sub- sections A, B, C, D, E, of 9.2 (species of special concern, crucial/critical habitat) - pg 43. Species of special concern should not be added. It was discussed at a properly advertised public hearing and its addition was rejected. It was added back at a subsequent and not properly noticed workshop meeting and did not allow proper public input. It is unjustifiably onerous to the regulated public as added, in violation of Fl. Stat. 120.52(8)(g). Crucial habitat should not be allowed to [be] substituted for critical habitat because the new glossary of definitions was not completed timely to allow public review and comment. The resource maps to be used are not identified or indicated that they have been created beyond "draft" status or had proper notice, public review or comment. The reduction from 5 acres to 1 acre in 9.2.C was improperly added at a workshop subsequent to the properly noticed public hearing at which this item was disposed of with public hearing and comment and leaving the size of 5 acres. The provision that the "acquisition of land by the Brevard County Environmentally Endangered Lands Program shall be voluntary, and shall not include the use of eminent domain" should not be removed in Policy 9.4 (pg. 45). These new provisions do not meet the requirements of Fl. Stat. Sections 120.58(8) and 120.525, Fl. Stat. Sections 163.3161(18), Fl. Stat. Sections 163.3181, Fl. Stat. Sections 163.3184(15), Fl. Stat. Sections 125.66(2), and or Fl. Stat. Sections 125.66(4). (The identified sentence and references were stricken. See Preliminary Statement.) Again, there were no changes to the Glossary to be noticed for hearing. As to "crucial habitat," amended Policy 9.2 of the Conservation Element requires that an ordinance be developed by 2002 requiring a "crucial habitat" review at the pre-application stage of certain projects. Previously, the plan required development of an ordinance in 2004 requiring a "critical habitat" review in those situations. Apparently, "critical habitat" was defined in the pre-amendment Glossary. (Neither the Glossary nor the rest of the County's Comprehensive Plan prior to the Plan Amendments was put in evidence.) No regulations regarding "crucial habitat" were in effect as of final hearing. A definition of the term "crucial habitat" might well be desirable. (Apparently, an amendment to the Glossary to include such a definition is being considered by someone--it is not clear from the evidence by whom.) But it is possible to use dictionary definitions of "crucial" and "habitat" to derive a useful meaning of the term "crucial habitat" used in Policy 9.2 of the Conservation Element. Petitioners did not prove beyond fair debate that the term "crucial habitat" cannot be adequately understood without a specific definition in the comprehensive plan. "Species of special concern" is a phrase used by Rule 9J-5.013(1)(a)5. in describing natural resources to be identified and analyzed in a local government's conservation element. The "resource maps" mentioned in paragraph 8.I.C., D., and E. of the Amended Petition are not new to the County's Comprehensive Plan. Prior to the Plan Amendments, Policy 10.2.A. stated that the County's Office of Natural Resources Management must "develop resource maps showing potential areas for critical wildlife habitat for threatened and endangered wildlife species." Amended Policy 9.2.A. requires that Office to "use resource maps which show potential areas of crucial wildlife habitat for threatened and endangered wildlife species and species of special concern." While the descriptions of these maps were changed by the amendment, the general manner in which they are identified is the same. It was not proven beyond fair debate that the amendments cannot be adequately understood without identification in a more specific manner or reference to maps already completed. Petitioners' next complaint in paragraph 8.I.C., D., and E. of the Amended Petition was that the threshold for required crucial habitat review in Policy 9.2.C. of the Conservation Element should not have been changed from five-acre projects to one-acre projects. Petitioners' primary argument was that the County discussed this change at a workshop. The only evidence in support of this argument was Moehle's testimony: "[T]he changes that show up in here were rejected in those previous hearings so the public has the impression well, that item is done and settled. Then all of a sudden at a workshop it shows up when nobody - they are not necessarily -- you can't obtain the advance agenda for that and you find a notice in the paper from time to time." In fact, the workshops were noticed in the newspapers. In addition, the transmittal and adoption hearings were noticed. See Findings of Fact 12-14, supra. As for Petitioners' request for reinstatement of the language regarding voluntary acquisition of environmentally endangered lands, former Policy 10.4 addressed development of an acquisition program; amended Policy 9.4 addresses a continuation of that program. The Justification explains that the amendments were "intended to reflect the achievement of this policy as a result of the EELs [Environmentally Endangered Lands] Program." There was no evidence to support the argument that removal of the voluntary acquisition language in any way changes the EELs Program or creates a compliance issue. Conservation Element Policy 9.13, Species of Special Concern Paragraph 8.I.G. of the Amended Petition stated: Policy 9.13 - species of special concern, habitat rarity, pg 48. This change is inconsistent with the same Florida Statutes and for the same reasons as I.C, I.D, I.E (A, B, C, E, E) and I.F above. Policy 9.13 contains a requirement to develop model management plans for species of special concern dependent on habitat rarity and loss rates. The amendment to former Policy 10.13 merely changes the target date (from 1990 to 2002) and adds "species of special concern" to the other resources sought to be addressed by the model management plans. The provision does not establish new regulations. It merely calls for future action in the development of model management plans. Again, there was no evidence to support the argument that these changes created a compliance issue. See Findings of Fact 32-33, supra. Scrub Habitat Map Paragraph 8.I.H. of the Amended Petition stated: Appendix - List of Maps, pg 52. The Scrub Habitat Map should not be included because it is part of the Scrub Habitat Study done in Brevard County which was not adopted/accepted as a final map by the Brevard County Board of County Commissioners. The map is a "draft" map done over 5 years ago, not finalized, and not accurate. Objections at public meetings, with Brevard County Staff, and with the outside consultants preparing the map have never been addressed on the map. Among the inaccuracies are hundreds (maybe thousands) of acres on government lands. The map is wholly deficient and incorrect to become an official map representing the scrub habitat of Brevard County. It doesn't come close to accurately depicting the scrub situation of Brevard County. The map is not supported by competent substantial evidence, has not been officially adopted by the County Commission, the requisite public notices have not been held. Any policy or regulation based upon the map would be equally erroneous and would result in unnecessary regulatory costs, and would be arbitrary or capricious and would be based upon inadequate standards. At final hearing, Moehle testified: "The scrub habitat map as included in the amendments does not include the best available information which information has been available for a number of years." But the Scrub Jay Habitat map Petitioners sought to use to prove this contention (Petitioners' Exhibit 6) was not admitted into evidence because it was not authenticated. The Scrub Habitat Map apparently added to the Appendix of Conservation Element maps through the B.12 Plan Amendments does not appear to map scrub on federal lands. (At least, no scrub is indicated in the extensive federal lands on the map.) But there was no competent evidence as to the significance of the failure to map scrub habitat on federal lands. (Nor did Petitioners cite to any authority for the proposition that excluding federal lands outside the County's jurisdiction is a violation of Chapter 163 or Rule 9J-5.) While Petitioners never clearly articulated their concerns about the Scrub Habitat Map, it appeared that they might have had concerns about the impact of the map on protection of scrub jays. Specifically, Petitioners seem to contend that some scrub jays will not be protected as a result of the map's omission of scrub on federal lands. But, in that regard, amended Conservation Element Policy 9.2. in the B.12 Plan Amendments provides for the development of an ordinance by 2002 that would provide, among other things, that if any endangered or threatened species or species of special concern are found on a project site, or there is evidence that such a species is onsite, the relevant state and federal agency permits would have to be obtained and documented prior to issuance of a building or construction permit. Once adopted, these regulations would protect scrub jays wherever the birds exist. Another apparent concern was that the Scrub Habitat Map allegedly was over 5 years old. Meanwhile, other maps allegedly have been or are in the process of being developed. But Petitioners' evidence was insufficient to prove beyond fair debate that the Scrub Habitat Map was not the best available data at the time of adoption of the Plan Amendments. Land Use Element, Administrative Policies Paragraph 8.II. of the Amended Petition states: Comprehensive Plan Amendment 1999B.13 The Administrative Policies 1 thru 8 (pg iv) which have been proposed for inclusion in the future Land Use Element by the County Attorney and added by a April 29, 2000 workshop were not timely provided for public review and comment by a properly noticed hearing in violation of the notice requirements of Florida Statutes subsections 163.3161(18), 163.3181, 163.3184(15), 125.66(2) and 125.66(4). They are over- broad, too general in nature, vague, and fail to establish adequate standards for county staff decisions, and vest unbridled discretion in the county staff in violation of Florida Statute 120.54(8). Detailed examples of this include: In Administrative Policy 1 - Brevard County zoning officials, planners and the director of planning and zoning should not be arbitrarily, capriciously, and without adequate defined standards be recognized as expert witnesses. Standards with detailed qualifications should be developed and included for each category of expert before this provision is considered for adoption. In Policy 2 (page iv) county staff recommendation should not automatically be considered expert testimony without qualifications. Page 1 under DIRECTIVES. The Future Land Use paragraph should not be deleted until sufficient emphasis has been placed in the requirement to ensure that sufficient land uses are available to support the anticipated population. It has not been at this time, in violation of Florida Statutes subsections 163.3177(2), 163.3177(3)(a), 163.3177(6)(a) and 163.3177(6)(f). As to 8.II.A., the evidence indicated that the advertisements were published in the time frames required and according to the standards set out by statute. See Findings of Fact 12-14, supra. Furthermore, Petitioners failed to establish that the Administrative Policies 1-8 were unavailable at the public hearing or that the Board of County Commissioners was not authorized to consider those policies. The language of the last sentence of paragraph 8.II. should have been stricken with similar provisions at the beginning of the final hearing because of its reliance on Section 120.54(8), which addresses rulemaking activities and not the compliance requirements of Chapter 163. There was no competent, substantial evidence to support any of the other allegations in paragraph 8.II.A. As to 8.II.A.(iii), there was only Moehle's statement regarding the lack of land availability while he was questioning Poplin. Poplin testified that the County should provide an adequate amount of different land uses to accommodate a variety of people and activities. She also testified that the County had provided more than enough residential land to accommodate projected populations. Poplin noted that the County's EAR (Evaluation and Appraisal Report) included or referenced several sources indicating that the County has more than enough land to meet their residential and non-residential needs through the planning time frame. In fact, she testified that land allocated for residential use is over 170 percent of the land necessary for the County's projected population. In explaining the "right-sizing" undertaken in the Plan Amendment, Poplin testified that two major changes have occurred since the adoption of the original County Plan. First, the County sold a substantial amount of land to the water management district; this land is now designated as Conservation. Secondly, some developments have been built to less than their full potential. Poplin testified: "My understanding of the County's actions is that this right sizing is to recognize areas that have developed and maybe have developed at lower densities. So by revising the densities on the map, they're recognizing this." Finally, Poplin testified that the future land use map (FLUM) and the policies proposed in the subject Plan Amendment are consistent with previous actions, previous development patterns, and previous purchases that have occurred within the County. As for Section 163.3177(2), cited by Petitioners at the end of paragraph 8.II.A.(iii) of the Amended Petition, the statute requires coordination of the land use elements. Poplin testified that the County has adequate facilities and services to provide for the land use plan proposed in its FLUM. Section 163.3177(6)(f) requires a housing element. There was no evidence that these elements do not exist in the County's comprehensive plan. Land Use Element Policy 1.1, Residential Land Use Designations Almost all of Paragraph 8.II.B. of the Amended Petition was stricken. See Preliminary Statement. Only the title and last sentence remained: Residential Land Use Designations, Policy 1.1 (reduced densities - pg 14). Property owners (including PETITIONERS) whose land use/zoning classification is no longer in compliance with the comprehensive plan amendment have not been notified as required by Florida Statutes subsection 125.66. Petitioners themselves provided evidence establishing that the statutory notice was properly given. See Findings of Fact 12- 14, supra. Land Use Element Policy 1.2, Public Facilities and Services The last sentence of Paragraph 8.II.C. of the Amended Petition was stricken. See Preliminary Statement. The remaining allegation was: Public Facilities and Services Requirements, Policy 1.2 (page 15). In subsection E, the prohibition by use of the words "shall not" are too harsh, restrictive, and confiscatory and should be replaced "shall not be required at the expense of the County." But the language of Criterion F under Future Land Use Element (FLUE) Policy 1.2 already states what Petitioners seek. Simply stated, Petitioners want the policy to state that private parties were not prohibited from building additional public facilities. The second sentence of the policy states: "This criterion is not intended to preclude acceptance of dedicated facilities and services by the county through . . . other means through which the recipients pay for the service or facility." Finally, the language of Criterion F under Policy 1.2 existed elsewhere in the Comprehensive Plan prior to the Plan Amendments; it is not new. The Plan Amendments simply changed the location of the language in the Plan. Land Use Policies 1.31 and 1.4 Paragraph 8.II.D. of the Amended Petition stated: Residential 30, Policy 1.31 and Residential 15, Policy 1.4 (pgs. 16, 18). In subsections 1.31.A.1.3 and 1.4.A. respectively, the limitation of this designation to east of Interstate 95 is arbitrary, capricious and is not supported by substantial evidence. It imposes excessive regulatory costs upon regulated property owners. It is confiscatory and fails to recognize the vested rights of property owners. There are areas west of Interstate 95 just as suitable and qualifying as areas east of Interstate 95. This policy fails to recognize existing or new infrastructure which services areas west of I-95 and is therefore inconsistent with other policies. New policy 1.4 is similar and related and also limits densities west of Interstate 95 under all circumstances. This change and any other related restrictions to all areas west of I-95 should be eliminated. FLUE Policies 1.3 (the proper number, not 1.31) and 1.4 deal with residential densities. Pertinent to Petitioners' complaint, Residential 30, allowing up to 30 units per acre, is located east of Interstate 95; generally, maximum residential density west of Interstate 95 is 15 units per acre in Residential 15, except where "adjacent to existing or designated residential densities of an equal or higher density allowance." Petitioners presented no evidence in opposition to these residential densities or designations or the data and analysis supporting them. To the contrary, Poplin testified that there was adequate data and analysis to support the changes. See Finding of Fact 47, supra. The other issues raised, such as excessive regulatory costs, relate to Section 120.52, Florida Statutes (2000), standards and are not at issue in the proceeding. Land Use Policy 2.8, Community Commercial Designation Paragraph 8.II.E. of the Amended Petition stated: Locational and Development Criteria for Community Commercial Uses, Policy 2.8 (pg 38). Subsection B regarding community commercial complexes should not be limited to 40 acres at an intersection for properties that have existing land use or zoning designations compatible to the new Community Commercial designation. The same is true for the limitations of subsections, C, D, and E. These new limitations are confiscatory, fail to recognize existing land use and zoning and vested rights of property owners, are arbitrary, capricious, are not supported by competent substantial evidence, enlarge existing regulations without justification. They impose additional regulatory costs on regulated property owners when the goal of Florida Statutes Chapter 163 could be met by less restrictive and costly regulatory alternatives. Other provisions of Policy 2.8, Table 2.2, Policy 2.9, Policy 2.10 that exceed the present regulation of properties having existing land use or zoning designations or actual use should not be allowed for the same reasons. Additionally, many of these amendments were added at a April 29, 2000 workshop without complying with applicable public notice requirements. Public review and input as to these elements was therefore lacking. The plain language of Criterion B under FLUE Policy 2.8 demonstrates that the restrictions have been relaxed, not increased. Previously, Criterion C under Policy 2.8 stated: "Sites for community commercial complexes should not exceed 20 acres." The letter designation of the criterion was changed, and the criterion was amended to read: "Community commercial complexes should not exceed 40 acres at an intersection." The Justification for the change states: "Site size has been enlarged to 40 acres maximum at an intersection. Previously, this criterion could be interpreted to permit a maximum of 80 acres at an intersection (20 acres at each corner). Forty acres has been chosen as this is the DRI threshold for commercial development." On its face, the purpose of amended Criterion B under Policy 2.8 was twofold: to enlarge the site size restriction from 20 to 40 acres; and to clarify that the restriction (now 40 acres) was meant to apply to all community commercial regardless whether they are located at intersections; locating a project on different sides of the street at an intersection was not supposed to double, triple, or even quadruple the maximum site size. Petitioners' position that amended Criterion B under Policy 2.8 shrinks maximum allowable the site size is based on Moehle's assumption that 80-acre projects were permitted at intersections under prior to amended Criterion B under Policy 2.8. But there was no competent, substantial evidence to support Moehle's assumption. Petitioners also seem to contend that the phrase "at an intersection" is imprecise, leading to uncertainty that undermines the required residential allocation analysis. But it is at least fairly debatable that no more precise definition is necessary. Contrary to Moehle's speculation, it is not reasonable to construe the phrase "at an intersection" to also mean "at an indeterminate distance away from an intersection." Petitioners also took the position that "folding" previous land use classifications into Community Commercial greatly expanded the practical effect of the acreage limitation in amended Criterion B under Policy 2.8. Petitioners' evidence did not explain their position in any detail or specificity. It is possible that they had reference to Criterion D under Policy 4.5 prior to the Plan Amendment, which allowed "regional commercial centers to incorporate up to 100 acres." If so, under the B.13 Plan Amendments, amended Policy 2.12 addresses regional commercial centers by requiring their location in a new Development of Regional Impact (DRI) future land use designation. The Justification for this change was: "With the proposed establishment of a Development of Regional Impact (DRI) land use category, regional uses will no longer be permitted in a commercial future land use designation. Review in accordance with Chapter 380, F.S. standards is intended to simplify readability and maintain consistency with state statutes." Reading amended Criterion B under Policy 2.8 together with amended Policy 2.12, commercial complexes larger than 40 acres are not prohibited under the Plan Amendment; they just have to be developed in a DRI land use category under Chapter 380 DRI standards. The reasonableness of these amendments is at least fairly debatable. Meanwhile, Poplin specifically testified that the data and analysis provided by the County were adequate to support the residential and nonresidential changes, including Community Commercial and Neighborhood Commercial changes. No contrary evidence was provided. Policies 2.9 and 2.10 allow minimal extensions of commercial boundaries. No evidence was presented addressing these items. The clear evidence was contrary to Petitioners' claim of notice violations. See Findings of Fact 12-14, supra. Transitional Commercial Activities Paragraph 8.II.F. of the Amended Petition states: Transitional Commercial Activities - Community Commercial - General Tourist Commercial (TU-1) - Highway Transient Tourist (TU-2). Existing properties with Mixed Use Land Use Designations and General Tourist Commercial (TU-1) and Highway Transient Tourist (TU-2) zoning classifications have not been protected with their existing regulation constraint in the transformation into the new Neighborhood Commercial and Community Commercial Regulations as has been asserted by the COUNTY in the revised objective and policies in the provisions covering these classifications as asserted by the COUNTY. Either proposed changes should conform or the changes should not be made. The same objections and changes are made for the new confiscatory provisions of the COUNTY for existing Industrial Land Use Designations and Zoning classifications under Industrial Land Uses (Objective 3, Policy 3, pg 55). The same objections and challenges are made for new confiscatory provisions of Agricultural Land Uses (pg 67) for existing Land Use Designations and densities of lands including reductions of densities to 1 unit per 5 acres by changes from a residential classification (including existing recorded subdivision plats). Many new items of the above were made at the April 29, 2000 workshop and proper public notices, review, and comment was not available. Petitioners failed to demonstrate any impact on actual development as a result of these future land use designation changes. No defect in notice was established by the evidence. Rather, the evidence indicated that all advertising requirements were met. See Findings of Fact 12-14, supra. Finally, Poplin testified that the majority of land uses remained the same based on existing uses, and that all changes were supported by data and analysis. Future Land Use Maps Update Paragraph 8.III.A. of the Amended Petition states: Comprehensive Plan Amendment 1999 B.14. The Future Land Use Maps Update Report - The Geographic Information Systems (GIS) maps are not consistent with the existing FLUM and RDG maps. There are corrections and amplifications needed before they are acceptable. The COUNTY did not either have available or make available to the public for review and comment the map(s) as transmitted to DCA at any properly noticed Public Hearing. It was asserted by the COUNTY that no Land Use Designations, Zoning, or Density Allocation changes, were being made to property owners. That is not true. Some specific examples are Sections 3 & 15, located within Township 22 South, Range 34 East, which were changed from Residential to Agriculture Use (density from 1 unit per acre to 1 unit per 5 acres) and Sections 1, 2, 11, 12, 13, 14 within Township 22 South, Range 34 East, from density of 1 unit per acre to 1 acre per 2.5 acres. The FLUM Report explains that the FLUM series was converted from graphic format to computerized geographic information system (GIS) format; as a result, the Residential Density Guidelines (RDG) map series could be combined with the FLUM series. Petitioners failed to establish any facts demonstrating that the new GIS FLUM series was not available or discussed at properly noticed public hearings. As to notice, see Findings of Fact 12-14, supra. There was no evidence of errors on the GIS maps. Petitioners complained that the GIS maps are unusable because they are too hard to read, especially because they were black and white. But actually the FLUM series is in color. There was no competent, substantial evidence that the color maps were too hard to read or unusable. Petitioners generally complained about residential density reductions but failed to present any competent, substantial evidence as to what supposedly was wrong with those reductions. Petitioners seem to believe that they should be able to obtain all information regarding their property from the Comprehensive Plan. There is no regulation cited by Petitioners requiring that the maps be of sufficient detail to enable someone to determine all possible uses of property based solely on a review of the maps. As a practical matter, additional site-specific information is nearly always necessary. In addition, GIS maps are computerized maps which are merely referenced by the Plan. The GIS system must ultimately be consulted regarding site-specific information. Poplin testified that the GIS updating of the FLUM and RDG map series was done primarily to streamline and consolidate the two previously separate maps. Contrary to Petitioners' assertions, Poplin testified that the conversion from two graphic maps to the GIS maps was a very positive change. Mixed Use District Conversion Paragraph 8.III.B. of the Amended Petition stated: Under the MIXED USE DISTRICT CONVERSION (pg 1) - Mixed Use District (MUD) land use designation and zoning classification of General Tourist Commercial (TU-1) or Highway Tourist Commercial (TU-2) existing classifications were not listed as being reclassified (to be designated as Community Commercial). Petitioners base this contention solely on the FLUM Update in the B.14 Plan Amendments. Petitioners' contention ignores FLUE Policy 2.7 in the B.13 Plan Amendments, one of the operative policies relating to the conversion from MUD. Policy 2.7 states which uses are allowed under the Community Commercial designation. Subparagraph "c" lists "Tourist Commercial uses" as being a use under Community Commercial. In their response to the motion for involuntary dismissal, Petitioners finally acknowledged Policy 2.7 but still maintain that it cannot be determined whether TU-1 and TU-2 zoning will be classified as Community Commercial or as Neighborhood Commercial. In making this argument, Petitioners ignore FLUE Policy 2.5, another operative policy in the B.13 section of the Plan Amendment, relating to the conversion from MUD. Policy 2.5 lists "[d]evelopment activities which may be considered within Neighborhood Commercial" and omits any "tourist commercial" development activities. Based on the evidence, it seems clear that both TU-1 and TU-2 zoning will be classified as Community Commercial, and not as Neighborhood Commercial. Petitioners' allegations that they were omitted from the MUD conversion are incorrect. More About the Glossary Paragraph 8.I.V. of the Amended Petition stated: Glossary, Definitions, Thresholds, Maps relating to Comprehensive Plan Amendments 1999 B.12, 1999 B.13 and 1999 B.14. Revised Glossary. A new Glossary and definitions was never completed and made available to the public before any properly noticed Public Hearing to properly allow public review, input, comment, etc. Incomplete or inaccurate data on thresholds and maps relating to Comprehensive Plan Amendments 1999 B.12, 1999 B.13 and 1999 B.14 were also not available. As previously found, the Glossary was not amended, and it would be inappropriate to advertise the Glossary for changes. There is no requirement that a glossary be included in a comprehensive plan. When a glossary is included, not every word in a comprehensive plan must be included. Forested Wetlands Location Map At final hearing, Petitioners asserted that the Forested Wetlands Location Map referred to and incorporated by reference in Policy 5.2.F.3. of the Conservation Element was not the best available data. This issue was not raised in the Amended Petition, and consideration of the merits of the assertion has been waived. In addition, as previously found, the language of Policy 5.2.F.3. was adopted prior to the Plan Amendments at issue in this case. See Finding of Fact 8, supra. On the merits of the argument, three forested wetlands maps were offered into evidence (as Petitioners' Exhibits 2, 3, and 4.) Only Petitioners' Exhibit 2 was admitted into evidence. Petitioners' Exhibit 2 reflects the Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan. Without Petitioners' Exhibits 3 or 4 being in evidence, or any other evidence on the issue, Moehle's testimony was insufficient to prove beyond fair debate that the Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan was not the best available data at the time of incorporation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order dismissing the Amended Petition and finding that Brevard County's Plan Amendments B.12, B.13, and B.14 are "in compliance." DONE AND ENTERED this 21st day of May, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2001. COPIES FURNISHED: Eden Bentley, Esquire Brevard County Attorney's Office 2725 St. Johns Street Viera, Florida 32940 Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Charles F. Moehle Modern, Inc. Post Office Box 321417 Cocoa Beach, Florida 32932 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
