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 amendment to the Land Use Plan Map of the Miami-Dade County Comprehensive Development Master Plan (CDMP), adopted by Ordinance No. 12-109 on December 4, 2012, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Miami-Dade County (the County) is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. The County adopted the challenged Plan Amendment under the expedited State-review process codified in section 163.3184(3), Florida Statutes. Petitioners Robert and Sylvia Kemp own property and reside at 11021 East Golf Drive, Miami, Florida. The Kemps submitted oral or written comments concerning the Plan Amendment to the County at the transmittal hearing. Petitioner Gregory Samms owns property and resides at 11200 West Golf Drive, Miami, Florida, and submitted oral and written comments concerning the Plan Amendment to the County during the transmittal hearing. Intervenor, Westview, is the owner of the property which is the subject of the challenged Plan Amendment. Westview, through its counsel, submitted comments in support of the amendment at the various public hearings. The Subject Property The property subject to the Plan Amendment is the site of the former Westview Country Club, a private club, with golf course, which is now closed (Property). The Property is approximately 196 gross acres, and is currently designated on the Land Use Plan Map (LUP Map) as Parks and Recreation (191.6 gross acres) and Low-Medium Residential (4.4 gross acres). It is currently zoned for residential development, mostly single- family, although there is some frontage along Northwest 119th Street zoned for limited business. The Property is curvilinear and approximately one- quarter mile wide. The site is mostly vacant, the former clubhouse having been demolished, although two maintenance buildings and a single-family home remain on the Property. There is a continuous vegetative buffer along the boundary of the Property. Under the existing future land use designation and zoning category, the Property could be developed at a maximum of 1,736 single- and multi-family residential units. The Property is surrounded on all sides by a residential neighborhood, generally known as Westview, in which Petitioners reside. Westview is an older, established community, consisting mostly of single-family residences with some multi-family development on the western edge. East and West Golf Drive, both local roads, surround the property boundary, providing internal access within the Westview neighborhood. The Property, as well as the surrounding neighborhood, is bisected north to south by Northwest 119th Street (also known as Gratigny Parkway), a major east-west arterial providing access to other regional corridors such as State Road 826/Palmetto Expressway to the west and Interstate 95 to the east. Beyond the immediately adjacent residential neighborhood, the Property is bounded by Northwest 22nd Avenue on the east and Northwest 27th Avenue on the west; and by Northwest 107th Street on the south and Northwest 134th Street on the north. To the west, across Northwest 27th Avenue, is the Miami-Dade County Community College North Campus, an institutional use, and a concentration of industrial uses known as the Northwest 27th-37th Avenue Industrial Corridor. East of 22nd Avenue is mostly low-density residential development, with pockets of low-medium residential development and a business-and- office corridor on either side of Northwest 119th Street. Development to the south is a mix of single- and multi-family residential. The future land use designations of the surrounding properties are institutional and industrial to the west, medium- density residential to the south, low- and medium-density to the east (with a business-and-office corridor along Northwest 119th Street), and low-density residential to the north. The Property is located inside the County’s Urban Growth Boundary (UGB), outside of which development is strictly limited in order to protect environmentally sensitive and agricultural lands, as well as limestone mining activities. The County only accepts proposals to change the UGB every two years and requires a supermajority vote of the County Commission to approve a change. The Property is also located within the Urban Infill Area (UIA), the major urban core of the County. The UIA boundary follows Interstate 95 from the northern County line, goes west along the Palmetto Expressway, and south along the Palmetto to 77th Street. The CDMP encourages development and redevelopment within the UIA, prioritizing development on sites within the UIA over sites outside the UIA. The Amendment Ordinance No. 12-109 changes the future land use designation of approximately 148 acres of the Property to Industrial and Office, and the remaining 47 acres to Business and Office (Plan Amendment). The owner of the Property plans to develop or cause to be developed on the Property the Westview Business Park, with a mix of Office and Industrial uses. Under the proposed land use designations, without any additional restrictions, the Property could be developed at an intensity of up to 3,012,174 square feet of industrial use on the Properties designated for Industrial and Office, and 733,550 square feet of retail use or 2,886 multi-family residential units on the areas designated Business and Office. In this case, the Plan Amendment has been adopted with a binding Declaration of Restrictions. These development restrictions are incorporated as text into the CDMP Land Use Element Restrictions Table. The Declaration restricts development of the Property as follows: Limits Industrial development to 1.6 million square feet of light industrial, warehouse, and flex space, and further limits warehouse/distribution space to no more than 700,000 square feet. Limits Business and Office development to a maximum of 400,000 square feet of retail and service uses. Limits Residential development to areas designated for Business and Office use, and a maximum of 2,000 units. Limits total site development to generation of a maximum of 3,297 net external PM peak-hour vehicle trips. Ensures development of a mix of uses by limiting construction of Industrial and Office to no more than 800,000 square feet prior to issuance of the first Certificate of Occupancy within the Business and Office parcels. Prohibits the re-zoning of the Industrially-designated portions to the IU-3 zoning district and development of any use allowed in the IU-3 Industrial zoning district. Prohibits all uses allowed in the IU-2 zoning district, except that storage and distribution of cement and clay products is allowed. Prohibits most uses allowed in the IU-1 zoning district. Requires the developer to improve the existing vegetative buffer between the Property and East and West Golf Drive to a sixty-foot landscaped buffer including a seven-foot masonry wall, opaque fence, or berm, with trees planted at a minimum height of 12 to 14 feet and not farther than twenty-five feet on center. Limits vehicular access to the Property exclusively from Northwest 119th Street, except that the Industrial and Office portions will have one access directly from Northwest 22nd Avenue.3/ Prohibits direct vehicular access between the Property and the surrounding residential neighborhood. Limits height of any hotel or motel use to 50 feet. Commits the developer to work with the Florida Department of Transportation, Miami-Dade County, and the Miami-Dade County Expressway Authority to make improvements on Northwest 119th Street, including extension of an existing westbound travel lane and construction of an eastbound turn lane. Requires the developer to: Incorporate Transportation Demand Management (TDM) Strategies, pedestrian access and connectivity in the including Business and Office developments, pedestrian access to transit stops, and construction of transit shelters. Direct all lighting away from adjacent residential uses, require sound deadeners for any metal work or welding-related uses, and prohibit outdoor speaker systems within the Industrial and Office designation. Dedicate a five-acre parcel for a public recreational facility and develop a multi-purpose jogging, biking, and pedestrian track within the rights of way of East and West Golf Drive. Offer to dedicate vacant land within the Property for a police substation or similar police use. Work with the Public Works Department and the Golf Park Homeowners’ Association to develop traffic calming devices and neighborhood identification signage for the residential neighborhood immediately adjacent to the Property. Make reasonable efforts to employ applicants who are residents of the zip code in which the Property is located, use local businesses and the local workforce in construction of the Project, utilize minority-owned businesses for construction contracts, and maintain non-discriminatory hiring practices. In addition to establishing binding restrictions on the development of the Property which run with the land, the Restrictions can only be modified by amendment to the CDMP, pursuant to section 163.3184, Florida Statutes, and applicable procedures of the Miami-Dade County Code. Petitioners’ Challenge Petitioners challenge that portion of the Plan Amendment which re-designates approximately 148 acres of the Property from Parks and Recreation to Industrial and Office. Petitioners do not challenge that portion re-designating approximately 46 acres from Parks and Recreation to Business and Office. Petitioners challenge the Plan Amendment as not “in compliance” on the basis of inconsistency with both the CDMP and the Community Planning Act, part II, chapter 163, Florida Statutes. Petitioners’ concerns center on the question of the compatibility between the proposed land use and the existing residential neighborhood. Compatibility Petitioners maintain that the proposed designation of the Property for Industrial development is inherently incompatible with the adjoining residential use. Petitioners rely on the following two CDMP provisions to support this argument: Policy LU-4B. Uses designated on the LUP map and interpretive text, which generate or cause to generate significant noise, dust, odor, vibration, or truck or rail traffic shall be protected from damaging encroachment by future approval of new incompatible uses such as residential uses. From the Textual Description of Industrial and Office Category:4/ In general, the typical residential development is incompatible with major industrial concentrations and shall not occur in areas designated as ‘Industrial and Office’ on the LUP map to avoid conflicts and for health and safety reasons. The cited provisions support a finding that Industrial development is generally incompatible with residential development. That fact was admitted by the County in its Staff Report on the proposed Plan Amendment. Neither of the cited provisions prohibits the Plan Amendment from being approved. Following these policies, the County would be justified in denying an application for new residential development within an area designated for Industrial and Office. It does not follow, however, that the County must deny a plan amendment allowing some industrial development adjacent to residential development. As explained by Intervenor’s expert, Thomas Pelham, in a highly-urbanized area like Miami-Dade County’s central core, it is unrealistic, if not impossible, to follow a Euclidean zoning approach, where different uses are dispersed and separated from one another. Compatibility in such a concentrated urbanized area must be judged by assessing the potential impacts of the proposed development and determining whether those impacts can be mitigated. “‘Compatibility’ means 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. Petitioners allege the Plan Amendment is inconsistent with the following group of policies which speak to compatibility among uses in close proximity (emphasis in original): GOAL PROVIDE THE BEST POSSIBLE DISTRIBUTION OF LAND USE AND SERVICES TO MEET THE PHYSICAL, SOCIAL, CULTURAL AND ECONOMIC NEEDS OF THE PRESENT AND FUTURE POPULATIONS IN A TIMELY AND EFFICIENT MANNER THAT WILL MAINTAIN OR IMPROVE THE QUALITY OF THE NATURAL AND MAN- MADE ENVIRONMENT AND AMENITIES, AND PRESERVE MIAMI-DADE COUNTY’S UNIQUE AGRICULTURAL HERITAGE. * * * Objective LU-4Miami-Dade County shall, by year 2015, reduce the number of land uses, which are inconsistent with the uses designated on the LUP map and interpretive text, or with the character of the surrounding area. Policy LU-4A. When evaluating compatibility among proximate land uses, the County shall consider such factors as noise, lighting, shadows, glare, vibration, odor, runoff, access, traffic, parking, height, bulk, scale or architectural elements, landscaping, hours of operation, buffering, and safety, as applicable. Policy LU-4C. Residential neighborhoods shall be protected from intrusion by uses that would disrupt or degrade the health, safety, tranquility, character, and overall welfare of the neighborhood by creating such impacts as excessive density, noise, light, glare, odor, vibration, dust or traffic. Policy LU-4D. Uses which are supportive but potentially incompatible shall be permitted on sites within functional neighborhoods, communities or districts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements. Policy LU-8E. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Objectives and Policies of all elements, other timely issues, and in particular the extent to which the proposal, if approved would: * * * iii) Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; . . . . Petitioners argue the County cannot find the uses compatible because it did not consider all the possible negative impacts to the existing residential development from the adjoining industrial development, as required by Policy LU-4A, and because the Plan Amendment does not protect the character of the Westview neighborhood, as required by Policies LU-4C, LU-4D, and LU-8E(iii). The Declaration of Restrictions is critical to the County’s determination that the uses, as proposed in this application, are compatible. County staff originally identified LU-4G and LU-8E as policies which “could be impeded” by the Plan Amendment application. However, the written staff analysis was not amended after the Declaration of Restrictions was finalized. The developer proposed different iterations of the Declaration of Restrictions as the application progressed through the process. The final Restrictions are the most stringent. Mr. Woerner testified that his opinion that the Plan Amendment is compatible is based on the dedication of the final Restrictions. The County considered noise impacts, as evidenced by Restrictions which prohibit outdoor speaker systems, require sound deadeners for metal work uses, and require that all air compressors be of radial (silenced) design. Further, the Restrictions require the developer to submit a site plan at re- zoning which incorporates noise-reduction techniques, such as traffic calming devices and wing walls surrounding loading bays. Petitioners complain that these Restrictions are meaningless because they contain no measurable standard, such as a maximum decibel level. However, Petitioner offered no evidence that a prohibition on outdoor speaker systems, sound deadeners, and radial (silenced) design of air compressors were meaningless or unenforceable standards. Lighting is addressed in the Restrictions, which require lighting to be directed away from the adjoining residential areas. Petitioners complain that the Restriction is meaningless because it contains no measurable standard, such as maximum lumens or brightness. However, Mr. Woerner testified that the Restriction gives direction to the County staff at site plan review to ensure that appropriate lighting is incorporated. The Restrictions also evidence the County’s consideration of traffic issues by limiting access to the Industrially-designated areas via two access points –- one on Northwest 119th Street and one from 22nd Avenue –- both of which are major arterial roadways. Further, the Restrictions require the developer to construct eastbound right-turn lanes and an extension to the existing fourth westbound travel lane on Northwest 119th Street to serve the Property. Finally, the Restrictions prohibit all internal traffic access between the proposed development and the residential neighborhood. The County conducted a traffic study and evaluated a traffic study submitted by the applicant in this case. The studies form the basis for many of the access and traffic provisions incorporated into the Restrictions. Buffering is directly incorporated into the Restrictions, which require a 60-foot landscaped buffer between the residential property and the proposed development, as more particularly described above. The landscape plan for the buffer area must be submitted to the surrounding property owners for review and comment prior to the public hearing on the re-zoning application for the Property. In addition to the landscaping plan for the buffer area, landscaping is further addressed in the Restrictions, which require street trees of at least 12 feet along all roadways abutting the Property at a spacing of 25 feet on center. Runoff is addressed in the Restrictions by requiring the developer to obtain a conceptual surface water permit from the County prior to issuance of any building permit for the Property. Petitioners fault the County for excluding from the Restrictions maximum height limits for warehouse and other industrial uses, while including a height limit for hotel and motel development. However, the County and Intervenor offered uncontroverted evidence that the County’s zoning code contains height limitations which will govern the industrial development. In the Restrictions, the height of hotel and motel development is limited beyond any regulation in the County’s zoning code. Petitioners likewise fault the County for not specifically including provisions addressing odor, vibration, and other potential negative impacts on the residential area as anticipated in Policy LU-4A. The best evidence that the County considered the myriad impacts from industrial development on the neighboring residential areas is the prohibition of the majority of typically allowable industrial uses. The Restrictions prohibit all uses allowed in the IU-3 Industrial Unlimited zoning district. Further, the Restrictions prohibit the following uses allowed in IU-2, the Industrial Heavy Manufacturing zoning district: Asphalt drum mixing plants which produce less than one hundred fifty (150) tons per hour in self-contained drum mixers. Rock and sand yards. Manufacturing of cement and clay products, such as concrete blocks, pipe, etc. Soap manufacturing, vegetable byproducts, only. Railroad shops. Sawmills. Petroleum products storage tanks. Dynamite storage. Construction debris materials recovery transfer facility. Finally, the Restrictions also prohibit most of the 90 uses allowed in IU-1, the Industrial Light Manufacturing zoning district.5/ Eliminating the uses prohibited by the Restrictions, the Property may be developed for the following uses: auditoriums, automobile rentals/storage and wholesale distribution, bakeries (wholesale only), banks, bottling plants, caterers, cold storage warehouses and pre-cooling plants, contractors’ offices (not yards), engine sales, food storage warehouse, hotel and motel, laboratories, leather goods manufacturing (except tanning), locksmiths, office buildings, pharmaceutical storage (subject to conditions), police and fire stations, post offices, radio and television transmitting stations and studios, restaurants, salesrooms and storage show rooms (retail subject to limitations), schools for aviation and electronic trades, physical training schools such as gymnastics and karate, ship chandlers, telecommunications hubs (subject to conditions), telephone exchanges, vending machine sales and service, truck and bus stations and terminals, as well as the storage and wholesale distribution of concrete, clay or ceramic products, and novelty works. By prohibiting the myriad uses typically allowed within an Industrially-designated area, the Restrictions eliminate the sights, sounds, odors, vibrations, glare and other potential adverse impacts associated with those uses. The Restrictions protect the neighborhood from noise, light, glare, odor, vibration, dust and traffic, as required by Policy LU-4C. A preponderance of the evidence supports a finding that the County considered the proximity of the neighborhood to the proposed Industrial and Office designation, and approved the designation only with severe limitations on allowable uses and with restrictions designed to mitigate negative impacts and protect the health, safety, and character of the adjoining neighborhood. The Restrictions are designed to buffer the neighborhood from potentially incompatible elements of the adjoining industrial uses, as required by Policy LU-4D. Neighborhood safety and quality of life are additionally addressed by specific provisions of the Restrictions. The developer is required to construct a multi- purpose jogging, bicycle, and pedestrian track along the perimeter of the property; offer to dedicate and improve a 5-acre public recreational facility; and offer to dedicate property for a police substation or similar police use. Further, the developer is required to include pedestrian access improvements across Northwest 119th Street between the Business and Office parcels. These improvements are designed to increase pedestrian access between the two sections of the neighborhood currently divided by Gratigny Parkway. Petitioners cite to the following additional provisions in support of their argument that the Plan Amendment is inconsistent with the CDMP: Policy LU-5B. All development orders authorizing new land use or development, or redevelopment, or significant expansion of an existing use shall be contingent upon an affirmative finding that the development or use conforms to, and is consistent with the goals, objectives and policies of the CDMP including the adopted LUP map and accompanying ‘Interpretation of the Land Use Plan Map’. Objective LU-8 Miami-Dade County shall maintain a process for periodic amendment to the Land Use Plan map consistent with the adopted Goals, Objectives and Policies of this plan, which will provide that the Land Use Plan Map accommodates projected countywide growth. Policy LU-8A. Miami-Dade County shall strive to accommodate residential development in suitable locations and densities which reflect such factors as recent trends in location and design of residential units; a variety of affordable housing options; projected availability of service and infrastructure capacity; proximity and accessibility to employment, commercial and cultural centers; character of existing adjacent or surrounding neighborhoods; avoidance of natural resource degradation; maintenance of quality of life and creation of amenities. Density patterns should reflect the Guidelines for Urban Form contained in this Element. Policy LU-8D. The maintenance of internal consistency among all Elements of the CDMP shall be a prime consideration in evaluating all requests for amendment to any Element of the Plan. Among other considerations, the LUP map shall not be amended to provide for additional urban expansion unless traffic circulation, mass transit, water, sewer, solid waste, drainage and park and recreation facilities necessary to serve the area are included in the plan and the associated funding programs are demonstrated to be viable. From the Textual Description of Parks and Recreation Category: Unless otherwise restricted, the privately owned land designated as Parks and Recreation may be developed for a use or a density comparable to, and compatible with, surrounding development providing that such development is consistent with the goals, objectives and policies of the CDMP. The cited provisions are wholly inapplicable to the Plan Amendment at issue. Policy LU-5B applies to development orders. The Plan Amendment at issue is not a development order. See § 163.3164(14) through (16), Fla. Stat. Policy LU-8A applies to evaluation of LUP map amendments to accommodate residential development. The Plan Amendment at issue does not designate property for residential use. LU-8A requires the County to follow the Guidelines for Urban Form in evaluating residential designations. While this policy applies to both new and existing residential development, it does not apply to the Plan Amendment at issue. Policy LU-8D speaks to factors for considering urban expansion. The Plan Amendment at issue is urban infill, not urban expansion. The textual description excerpted from the Parks and Recreation category is likewise inapplicable because it limits development on lands designated Parks and Recreational without a change to another land use category. In the case at hand, a map amendment is sought, rendering those limitations inapplicable. Urban Infill and Economic Development Miami-Dade County maintains that the proposed Plan Amendment is consistent with, and furthers, a number of other CDMP provisions, as follows: LU-1C. Miami-Dade County shall give priority to infill development on vacant sites in currently urbanized areas, and redevelopment of substandard or underdeveloped environmentally suitable urban areas contiguous to existing urban development where all necessary urban services and facilities are projected to have capacity to accommodate additional demand. LU-10A. Miami-Dade County shall facilitate contiguous urban development, infill, redevelopment or substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed-use projects to promote energy conservation. LU-12. Miami-Dade County shall take specific measures to promote infill development that are located in the Urban Infill Area as defined in Policy TC-1B or in a built-up area with urban services that is situated in a Community Development Block Grant-eligible area, a Targeted Urban Area identified in the Urban Economic Revitalization Plan for Targeted Urban Areas, an Enterprises Zone established pursuant to state law or in the designated Empowerment Zone established pursuant to federal law.[6/] The proposed use of the Property is for infill development and redevelopment of an underdeveloped parcel in a highly urbanized area. Petitioners’ expert, Mr. Henry Iler, questioned whether the proposed use of the Property is infill development. He argues that urban infill is traditionally higher-density residential on small vacant sites within urban areas, explaining that “Infill development a lot of times are quarter acre parcels or it could be an acre inside of some development.”7/ Mr. Iler’s argument is not persuasive because it is the location of the development, rather than its size or use, that defines it as urban infill. The Property represents a unique, if not unprecedented, opportunity in Miami-Dade County –- almost 200 acres of vacant land within the UIA, with ready access to major transportation corridors for moving goods throughout Florida and beyond. County staff estimates the project would create 2,000 direct jobs and up to 3,500 direct and indirect jobs combined. Industrially-zoned property within the minor statistical area (MSA) in which the Property is located, along with the closest adjacent MSA, is projected to be depleted by the year 2017. The designation of the Property for Industrial would add over nine years’ supply of Industrial land within the two combined MSAs. The Plan Amendment includes a functional mix of land uses, and the Restrictions ensure that a mix of uses actually develops. The Property is located within a quarter-mile of a future rapid transit corridor, and partly within the North Central Urban Community Center, which is planned for intensified mixed-use development along the Northwest 27th Avenue and Northwest 119th Street transit corridors. The site is currently served by three Metrobus routes, one of which is programmed for improvements in 2012. The Restrictions require the developer to improve existing transit stops along Northwest 119th Street. As summarized by Mr. Pelham, the Plan Amendment fits Policy LU-10A “like a glove.” Concepts The CDMP Future Land Use Element contains a list of 14 long-standing concepts which are embodied in the CDMP. Mr. Woerner testified that the Plan Amendment is consistent with a number of those concepts, including: Rejuvenate decayed areas by promoting redevelopment, rehabilitation, infilling and the development of activity centers containing a mixture of land uses. Promote development of concentrated activity centers of different sizes and character to provide economies of scale and efficiencies of transportation and other services for both public and private sectors. 11. Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs. 13. Avoid excessive scattering of industrial or commercial employment locations. Mr. Woerner testified that the Plan Amendment furthers concept 8 by encouraging infill and a mix of land uses, furthers concepts 9 and 13 by its location in relation to the nearby Northwest 27th-37th Avenue Industrial Corridor and access to major transportation routes, and furthers concept 11 by fulfilling the need for industrial land in the two adjoining MSAs. Petitioners counter with concept 7, “Preserve sound and stable residential neighborhoods,” arguing that the Plan Amendment is contrary to this long-standing concept. Mr. Woerner testified that the Plan Amendment protects the Westview neighborhood through the extensive Restrictions, eliminating myriad uses otherwise allowed in Industrially-designated areas and requiring mitigation of anticipated negative impacts. Petitioners maintain that the Restrictions do not afford the neighborhood the protection required under the CDMP because the Restrictions are not binding, or otherwise enforceable, and can be changed in the future by the County Commission. Petitioners’ argument is not well-taken. The competent substantial evidence supports a finding that the Declaration of Restrictions is incorporated into the Future Land Use Element of the CDMP and can only be changed pursuant to the public notice and hearing provisions of the County ordinances and the Community Planning Act. If, as Petitioners speculate, the owner seeks to permit an IU-3 use on the Property in the future, it will require a future Plan Amendment to revise the Declaration of Restrictions as if it were another land use amendment. Further, such amendment is subject to a super-majority vote of the County Commission. Summary Petitioners failed to establish beyond fair debate that the challenged Plan Amendment is not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that the Miami-Dade County Plan Amendment adopted by Ordinance No. 12-109 on December 4, 2012, is in compliance. DONE AND ENTERED this 1st day of August, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2013.
The Issue Whether Comprehensive Plan Amendment 96-2 adopted by the County on September 24, 1996, is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. Respondent, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto pursuant to Part II, Chapter 163, Florida Statutes. Petitioners, T. D. Farnsworth, Russell E. Weir, Jack Burchill, Linda Latham, and Terry Forsman, own property and reside within Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development, Inc. (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the county, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group. By stipulation of the parties, Petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Pringle Communities, Inc. (Pringle), is a Florida corporation and the potential developer of the subject property of this proceeding. Pringle submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. The amendment On May 13, 1996, the County adopted plan amendment 96A01 by Ordinance No. 96-17. On November 7, 1996, the DCA published a Notice of Intent to find the amendment in compliance. Amendment 96A01 amended the Sumter County Comprehensive Plan's (the Plan) Future Land Use Map (FLUM) to revise the land use designations on approximately 510 acres of land. Specifically, the plan amendment converted the land use designation for the Pringle parcel from an Agricultural to a Planned Unit Development (PUD) land use, limited to 499 residential units. The plan amendment also revised the FLUM by extending the Urban Expansion Area to include the Pringle parcel and an adjacent parcel immediately to the north of the Pringle parcel, which had apparently been inadvertently omitted from the Urban Expansion Area in the final draft of the Plan. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related to issues, a preliminary environmental assessment, a population and housing analysis, a concurrency analysis, building permit information and analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis submitted up until the time the DCA issued its Notice of Intent to find amendment 96A01 in compliance, and at the final hearing, collectively demonstrate that the amendment is appropriate for the designated area. Is the Plan Amendment in Compliance? Petitioners have alleged the amendment is not in compliance for the following reasons: (a) the amendment fails to protect agricultural lands; (b) the amendment encourages urban sprawl; (c) the future land use map fails to reflect the goals, objectives, and policies of the Plan; (d) there is no demonstrated need for 510 acres of PUD land use; (e) the amendment does not demonstrate compatibility with adjacent agricultural and rural residential land uses; (f) the amendment does not provide for concurrency for adopted levels of services pursuant to the Plan; (g) the amendment does not comply with stormwater and drainage requirements of the Plan; (h) the amendment fails to satisfy the capital improvements element of the Plan; and (i) affordable housing needs are not met. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 510 acres of land designated on the FLUM as agricultural land use will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by Plan Objective 7.1.2 and Rule 9J-5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insure(s) retention of agricultural activities." If the plan amendment fails to adequately protect adjacent agricultural areas, the cited rule considers this failure to be one of the thirteen primary indicators that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, Plan Objective 7.1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly, and logical fashion based on need and suitability. The agricultural lands being converted to urban land uses as a result of the plan amendment are appropriate for conversion. The Plan designates the Pringle parcel as an area appropriate for urban development. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. In fact, the Plan contains a series of maps which specifically locate agricultural areas appropriate for conversion to urban uses, and the Pringle parcel is located within such designated areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the requirement within the Plan that infrastructure be in place concurrent with development. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. Because Rule 9J-5.006(5)(g)5., Florida Administrative Code, deals exclusively with "adjacent" agricultural land, the conversion of any agricultural uses on the Pringle parcel is not relevant to the cited rule. The Plan requires the County to retain a minimum of ninety percent of its land area in rural (agriculture, timberland, and vacant) and conservation land use. The County has no "mining" zoning or land use designation, but includes mining as an agricultural use. Including the land covered by mining permits in the County, more than ninety percent of the County's land area is maintained in rural (agriculture, timberland, and vacant) and conservation land use, even after the adoption of the amendment. In view of the above, Petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land, either on or adjacent to the Pringle parcel. Urban sprawl In the same vein, Petitioners contend that the amendment fails to discourage urban sprawl because it converts 510 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, which have allegedly been violated. Petitioners also allege the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references Plan Policy 7.1.2.5(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural land use area, it must score at least 50 points, applying a point system based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD fails to score 50 points, it is deemed to encourage urban sprawl and would not be approved by the County. Amendment 96A01 scored 100 points, well in excess of the 50-point threshold. While the point system does not apply directly because the amendment alters the Urban Expansion Area to include the Pringle parcel, it is evidence that the amendment does not fail to discourage urban sprawl. In addition to satisfying Plan Policy 7.1.2.5.(a), the plan amendment is consistent with Future Land Use maps VII-18a and VII-18c, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the Plan data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18a demonstrates that the land included in the plan amendment has only slight limitations in regard to urban sprawl. If the amendment allows a strip development, this is another of the thirteen primary indicators that an amendment may fail to discourage urban sprawl. The evidence shows, however, that the subject property is not a strip development because it is not a linear development that runs parallel to a highway. Finally, the PUD mixed land use category adopted by the plan amendment is a planning method specifically recognized by Rule 9J-5.006(5)(1), Florida Administrative Code, as a method of discouraging urban sprawl. Indeed, the rule provides in part that: mixed use development . . . will be recognized as [a method] of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Because the PUD adopted by the amendment is designed to provide a mix of land uses, the amendment does not fail to encourage an attractive and functional mix of uses. Given the above, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. Demonstrated need and adequate data Petitioners allege the plan amendment "fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege amendment 96A01 "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Section 163.3177(10)(e), Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. Demonstrated need is only a subset of one of the thirteen primary indicators that an amendment or plan may fail to discourage urban sprawl. Rule RJ-5.006(5)(g)1, Florida Administrative Code, lists as one of the thirteen indicators whether the amendment: [p]romotes, allows or designates 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. (Emphasis added) The thirteen primary indicators are evaluated as a whole, not as a "one strike and you're out" list, to determine one aspect of compliance -- whether the amendment fails to discourage the proliferation of urban sprawl. "Multipliers" are a planning tool generally utilized by professional planners to aid in determining the need for additional allowable densities. Multipliers are generally expressed as a percentage or ratio of the estimated population in a given time period compared with the total residential units allowed by the comprehensive plan. For example, a multiplier of 2.0 would mean that, over the particular planning time frame, there existed twice as many residential units allocated as the population projections estimated would be utilized. At hearing, Petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended (a) seasonal population and planned federal prison expansions contained within the approved Plan were in error and therefore should not be used to support the amendment; (b) the agricultural land use acreage should be included in the multiplier calculation; and (c) the PUD maximum allowable density of eight units per acre should be used to calculate the multiplier rather than the approved density of just under one unit per acre. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations, and Comments (ORC) report and preparation for the hearing in this matter. The ORC report recommended that the County provide data and analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population. Based on historic data, the County utilized a multiplier which had been calculated in 1995 in Case No. 94-6974GM, judicial recognition of which was taken in this hearing. In that case, the multiplier depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately eighty-seven percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In an effort to provide a more accurate multiplier, prior to the hearing, utilizing data available when the amendment was adopted, the County recalculated the multiplier and determined the updated multiplier to be 1.3. The County's calculation of a multiplier excludes agricultural land from consideration, in order to protect agricultural lands as required by the Plan. In some rapidly urbanizing jurisdictions vacant land labeled agricultural or rural on a future land use map may simply be future development land. However, the County has as one of its primary land use goals to protect agricultural land. To include agricultural land use acreage in the multiplier calculation could lead to an under- allocation of density which would jeopardize agricultural land by encouraging development in the very areas the plan is designed to protect. The DCA has utilized multiplier calculations in other counties that do not include agricultural lands. Therefore, because of the unique situation of the County and its land use plan's emphasis on protecting agricultural land, in this case it is professionally acceptable to exclude agricultural land from the multiplier calculation. In the County, PUD is a land use category rather than merely a zoning category as in many other jurisdictions. The effect of that designation is to limit the density of the development by land use designation to 499 units. Any increase in the density or intensity of the development would require a land use plan amendment. Consequently, when calculating the multiplier, the density approved for this PUD (499 units) should be utilized rather than the PUD maximum allowable density of eight units per acre. Petitioners developed a multiplier of their own of 4.1. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Intervenor's marketing scheme for its residential developments is directed at persons moving to Florida from other states. Intervenor plans to use the same marketing scheme for the Pringle parcel, and most residents are not expected to be from the County. The proposed development, along with the Villages development in the northeast section of the County, which is subject to age restrictions which limit its availability to families, is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Between 1992 and 1996, the federal prison facility located near the Pringle property hired new employees, many of whom relocated from outside the area. However, the vast majority of these immigrants located outside of the County because of a lack of available appropriate housing. The federal prison facility is to be expanded in the near future, with the next phase to employ approximately 250 new employees. This expansion has already been funded by the federal government. Although the federal prison and its expansions were contemplated as part of the Plan adoption process, the impact of the federal prison and its expansions were not included in the population projections as calculated in the Plan. The seasonal population of the County was not included in the Plan's population projection. Rule 9J-5.005(2)(e), Florida Administrative Code, requires both resident and seasonal population estimates be used to determine population estimates for plan and plan amendment purposes. Therefore, the seasonal population estimate and the impact of the federal prison should be included in determining need. Given these considerations, Petitioners have not shown to the exclusion of fair debate that the plan amendment was not based on a demonstrated need, or was not adequately supported by data and analysis. Compatibility with adjacent agricultural lands Petitioners have also alleged the County has not demonstrated compatibility with adjacent agricultural and rural residential land uses. The Plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the Plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and Master Development Plan, both incorporated into the plan amendment, shows that the Pringle development will provide approximately 225 acres of open space. Much of this open space, as required by the Plan, will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development, which serves to separate the more urban development from the adjacent agricultural and rural uses. In view of these considerations, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent agricultural land uses. Level of services In their Petition, Petitioners assert that amendment 96A01 violates Plan Objective 7.1.6, Policy 7.1.6.1, Objective 8.1.1, and Policy 8.1.1.1, Rules 9J-5.005(3), 9J-5.011(2)c., and 9J-5.015(3)(b)1., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services, stormwater, and flooding. The stated policies and rules require adoption and adherence to specific levels of service prior to development of land. The amount of facilities required is based on population. Under the Plan, the County must take the necessary steps to insure the availability of these facilities. The development order in this case also requires the developer to provide for adequate public facilities. Petitioners offered no testimony, exhibits, or evidence regarding the following: Plan Objective 7.16, as alleged in paragraph 15.F. of their petition; Objectives 4.4.1, 4.5.1, and 4.5.2, and Policies 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.5.1.2, and 4.5.2.1, as alleged in paragraph 15.G of their petition; Objective 8.1.1, as alleged in paragraph 15H of their petition; and Objective 1.3.5, as alleged in paragraph 15.I of their petition. Petitioners also specifically stated they are not contesting any issues regarding flooding. In view of this lack of presentation of evidence, Petitioners have failed to show to the exclusion of reasonable debate that the plan amendment is inconsistent with any of the above Plan Objectives and Policies.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order determining Plan Amendment 96-2 adopted by Sumter County by Ordinance Number 96-17 on September 24, 1996, to be in compliance. DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jane M. Gordon Environmental and Land Use Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 T. Daniel Farnsworth 12364 County Road 223 Oxford, Florida 34484 Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 Jimmy D. Crawford, Esquire Post Office Box 492460 Leesburg, Florida 34749-2460 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background 1. E. K. Edwards (Edwards) and Richard J. Clark (Clark), who are non-parties, own two tracts of land totaling 43.76 acres approximately four or five miles west-northwest of the City of Pensacola in unincorporated Escambia County. The larger tract (known as the Northern Parcel and owned by Edwards) consists of one parcel totaling 26.76 acres and is located at 2700 Blue Angel Parkway, also known as State Road 173. The second tract (known as the Southern Parcel and owned by Clark) consists of four contiguous parcels totaling around 17 acres and is located approximately 560 feet south of the Northern Parcel at the northeastern quadrant of the intersection of Blue Angel Parkway and Sorrento Road (intersection). The two tracts are separated by two large privately-owned lots that currently have residential uses. (However, the land use on one of those parcels, totaling almost 9 acres, was recently changed to a Commercial land use designation. See Finding of Fact 15, infra.) On July 10, 2002, a realtor (acting as agent on behalf of the two owners) filed an application with the County seeking to change the land use on the FLUM for both the Northern and Southern Parcels from LDR to Commercial. The LDR category allows residential densities ranging from one dwelling unit per five acres to 18 dwelling units per acre, as well as neighborhood commercial uses. The Commercial category would allow the owners to place a broad range of commercial uses on their property, such as shopping centers, professional offices, medical facilities, convenience retail, or other similar uses. On November 20, 2002, the County Planning Board (on which Petitioner was then a member) considered the application and voted unanimously to change the land use classification on the Southern Parcel to Commercial. It also voted to change the non-wetlands portion of the Northern Parcel to Commercial. However, the request to change the land use on the wetlands portion of the Northern Parcel was denied. This recommendation was forwarded to the Board of County Commissioners (Board), which modified the Planning Board's recommendation and approved the application as originally submitted. The amendment was then sent to the Department for an in compliance determination. On June 13, 2003, the Department issued its Objections, Recommendations, and Comments (ORC) Report. In the ORC, the Department expressed concerns that there were insufficient "adequate data and analyses to demonstrate the suitability of the [Northern Parcel] for the proposed Future Land Use designation" because of the presence of on-site wetlands. The ORC went on to say that the County had failed to demonstrate how the proposed amendment would be consistent with four other Plan provisions that prohibit the location of commercial and industrial land uses in certain types of wetlands. The ORC recommended that the County "provide a more detailed characterization of the site and the surrounding area relative to the natural resources [wetlands] on the amendment site and the general area." After the issuance of the ORC, Mr. Edwards retained an ecological consultant, Dr. Joe A. Edmisten, to address the Department's concerns. On July 16, 2003, Dr. Edmisten submitted a 14-page Report in which he essentially concluded that while there were wetlands on the site, there were no endangered, threatened, rare, or listed plant or animal species. That Report has been received in evidence as Petitioner's Exhibit 4. In light of this new information, the Planning Board again considered the matter on August 20, 2003, and by a four- to-one-vote recommended that the application, as originally filed, be approved. The matter was then forwarded to the Board. In response to an inquiry by a Board member at the Board's meeting on September 4, 2003, Dr. Edmisten stated that he found a "few pitcher plants in the wetlands [on Mr. Edwards' property]," including Sarracenia leucophylla, which is on the State (but not federal) Endangered Plant List. See Fla. Admin. Code R. 5B-40.0055(1)(a)334. Even though this information had not been disclosed in the Report, by a three- to-two vote, the Board adopted Ordinance No. 2003-45, which approved the change to the FLUM for both the Northern and Southern Parcels. On October 24, 2003, the Department issued its Notice of Intent to Find the Escambia County Comprehensive Plan Amendment in Compliance. On November 17, 2003, Petitioner, who resides, owns property, and operates a business within the County, and submitted written or oral comments, objections, or recommendations to the County before the amendment was adopted, filed his Petition alleging that the plan amendment was not in compliance. Petitioner is an affected person within the meaning of the law and has standing to file his Petition. In the parties' Pre-Hearing Stipulation, Petitioner contends that there is inadequate data and analyses relative to the natural environment (wetlands), traffic concurrency, and urban sprawl to support the amendment. As further clarified by Petitioner, he does not challenge the change in the FLUM for the Southern Parcel, but only contests that portion of the amendment which changes the land use on the Northern Parcel, on which wetlands are sited. In view of this, only the Northern Parcel will be considered in this Recommended Order. The Property The Northern Parcel fronts on the eastern side of Blue Angel Parkway approximately 1,400 feet north of the intersection. In broader geographic terms, the property is in western Escambia County and appears to be several miles west- northwest of the Pensacola Naval Air Station (which lies west- southwest of the City of Pensacola) and several miles south of U.S. Highway 98, which runs east-west through the southern part of the County. Blue Angel Parkway is a minor arterial roadway (at least where it runs in front of the Northern Parcel) and begins at the Pensacola Naval Air Station (to the south) and runs north to at least U.S. Highway 98. From the Naval Air Station to the intersection, Blue Angel Parkway appears to have four lanes, and from that point continuing past the Northern Parcel to U.S. Highway 98, it narrows to two undivided lanes. At the present time, an old borrow pit sits on the eastern side of the land, for which the property was given a special exception by the County's Zoning Board of Adjustments in March 1995. Also, there are at least three other ponds (or old borrow pits) formerly used by the owner for catfish farming; two large, unused metal buildings (apparently hangars) moved from the Naval Air Station to the property as military surplus; and numerous stored empty tanks in the southeastern corner of the property. The remainder of the property is vacant. When Dr. Edmisten's Report was submitted in July 2003, all of the ponds were filled with water due to recent heavy rains. Because of existing development at all corners of the intersection except the southwest corner, the intersection has been designated by the County as a commercial node, and the County considers the node to extend from the intersection northward along the eastern side of Blue Angel Parkway to the Northern Parcel. (However, on the western side of the road, the County has determined that the node terminates at the end of a parcel on which a Wal-Mart Super Center sits, and that further commercial development beyond that point would be inappropriate.) This determination is consistent with the Commercial land use classification found on the western portion of the Northern Parcel. See Finding of Fact 13, infra. The property presently carries a split future land use: an approximate 150-foot deep sliver of land which fronts on Blue Angel Parkway is classified as Commercial, while the remainder of the parcel is LDR. This dichotomy in land uses stems from a decision by the County in 1993 (when the Plan was adopted) to designate a narrow commercial strip on both sides of Blue Angel Parkway from just south of the intersection to Dog Track Road, which lies north of the Northern Parcel. The property also carries an Industrial zoning classification (presumably related to the mining activities), even though the land use on most of the parcel is residential. By his application, Edwards is seeking to "unify" the back or eastern portion of his property, which is now LDR, with the western portion fronting on Blue Angel Parkway, which is classified as Commercial. To the east of the Northern Parcel is Coral Creek, a fairly large residential subdivision platted in the 1990s. Some of the single-family lots in that subdivision back up to the eastern boundary of the property. The property to the north is vacant, is populated with some pitcher plants, and is classified as residential. Across the street and to the southwest is a new Wal-Mart Super Center which opened in the last year or so at the northwestern quadrant of the intersection. (The northern boundary of the Wal-Mart Super Center parcel is directly across the street from the southern boundary of the Northern Parcel.) The property directly across the street and extending to the north is vacant and classified as Residential. That parcel also contains pitcher plants and is informally designated as "pitcher plant prairie." The property which separates the Northern and Southern Parcels is classified as Residential, except for 8.98 acres which were recently changed from LDR to Commercial through a small-scale development amendment approved by the Department. See Gregory L. Strand v. Escambia County, DOAH Case No. 03-2980GM (DOAH Recommended Order Dec. 23, 2003; DCA Final Order Jan. 28, 2004). The Final Order in that case, however, has been appealed by Petitioner. While the precise amount of wetlands on the site is unknown, the record does indicate that wetlands exist on "approximately" one-half of the Northern Parcel, or around thirteen or so acres, leaving a like amount of uplands. (Therefore, even if the property is reclassified, the amount of development on the property will be restricted in some measure through the application of the County's Wetlands Ordinance found in the Land Development Code.) A small area of wetlands exists on the western side of the property near Blue Angel Parkway while a larger wetland system lies on the eastern side of the property and acts as a buffer with the Coral Creek subdivision. The wetlands are under the permitting jurisdiction of the United States Corps of Engineers, the Department of Environmental Protection, and the County. Petitioner's Objections Petitioner contends that the amendment is not in compliance because there is inadequate data and analyses relative to conservation (wetlands), traffic, and urban sprawl to support the change in the land use.2 These issues will be addressed separately below. Wetlands As to this objection, Petitioner's principal concern is that if the land use change is approved, there will be much more intense development on the property which will result in a loss of wetlands, even with mitigation. Citing Policy 11.A.2.6.d of the Coastal Management Element of the Plan, he contends that there is insufficient data and analyses to support the plan amendment's distribution of land uses in such a way as to minimize the effect and impact on wetlands. The cited policy contains provisions which govern the development of lands within wetland areas, including one provision which states that "commercial and industrial land uses will not be located in wetlands that have a high degree of hydrological or biological significance, including the following types of wetlands: . . . Wetlands that have a high degree of biodiversity or habitat value, based on maps prepared by the Florida Fish and Wildlife Commission or Florida National Areas Inventory, unless a site survey demonstrates that there are no listed plant or animal species on the site." In Case No. 03-2980GM, supra, which involved a change in the FLUM on a parcel of property which separates the Northern and Southern Parcels, Petitioner contended, among other things, that the terms of Policy 11.A.2.6.d should apply whenever the FLUM is being amended, and that because there were wetlands on the parcel, along with two types of endangered plants, the policy prohibited a change from a residential to a commercial land use. In rejecting that contention, however, the Department approved and adopted language by the Administrative Law Judge which concluded, for several reasons, that "the County intended Policy 11.A.2.6.a through e to apply to decisions of the County regarding development applications and not to changes in future land use designations or categories in a FLUM." (Recommended Order, page 19). Therefore, the policy applies to development applications, and not to FLUM amendments, and does not have to be considered at this juncture. (That policy, and the County's Wetlands Ordinance, will obviously come into play at the time a site plan is filed and the owner seeks to develop the property.) As such, there is no need for data and analyses at this time to demonstrate that the policy has been satisfied. As noted above, after the Department issued its ORC, Mr. Edwards engaged the services of Dr. Edmisten, who performed a study and prepared a Report that evaluated the wetlands on the Northern Parcel. That Report constitutes much of the data and analyses which support the amendment. Despite the presence of one endangered plant species, the Report indicates that the wetlands do not have a high degree of hydrological or biological significance; that the change in the FLUM is consistent with all relevant policies in the Plan, including those cited in the ORC; that a mitigation plan will be offered prior to any development; and that all wetlands issues will be addressed during the development stage. The Report also indicates that among other things, Dr. Edmisten utilized the National Wetlands Inventory Map in reaching his conclusions. The Department reviewed the document and found that it constituted the best available data and analyses, that the data were analyzed in a professional manner, and that the County reacted to the data in an appropriate manner when it adopted the amendment. This is especially true since the County has provisions in its Plan for wetlands avoidance and fully considers these issues through the site-review process. Given these considerations, it is at least fairly debatable that there exist adequate data and analyses regarding wetlands to support the change in the land use on the property. Traffic Petitioner also contends that there is a lack of adequate data and analyses to demonstrate that the proposed change in land use will not adversely impact traffic in the area. More specifically, he contends that the County failed to perform an analysis of infrastructure capacity, and that it also failed to include information that Blue Angel Parkway is not in its five-year plan for improvements. Data and analyses were provided in the form of a spreadsheet dated November 6, 2002, and entitled Traffic Volume and Level of Service Report (Traffic Report). The Traffic Report contained several categories of information regarding traffic volume, Level of Service (LOS), and other transportation information. (See Petitioner's Exhibit 1) The data were far more detailed than data previously used by the County on other amendments of this size and character, and they were based on Florida Department of Transportation (DOT) accepted standards of traffic calculations. The data and analyses were the best available at the time the plan amendment was adopted. The data shows that the section of Blue Angel Parkway on which the Northern Parcel fronts has an adopted LOS of "D." At the time the amendment was adopted, the service volume on that portion of the road was 74 percent, which means that the roadway was operating at 74 percent of its capacity. Therefore, when the amendment was adopted, the roadway was not failing, and it could handle additional traffic, including any that might be associated with the future development of the land. Petitioner also contends that the County's study was flawed because the County used so-called "Art Tab" software, which became outdated after September 1, 2002. (Art-Tab software has now been updated and is called Free Plan software.) He further suggests that the County should have performed a new study using updated software. Under DOT requirements set forth in its Quality/Level of Service Handbook, however, the County was not required to redo its analysis; rather, it was required to use the new software only in the event further studies were required. Because Blue Angel Parkway was not failing at the time the study was performed, it was not necessary for the County to undertake a new study. During the interagency review process, the DOT did not issue any objections, recommendations, or comments to the Department concerning the amendment. Finally, Petitioner contends that because the County did not have Blue Angel Parkway on any road improvement list at the time the amendment was adopted, its analysis of infrastructure capacity was flawed. See Section 163.3177(3)(a), Florida Statutes, which requires that each local government's comprehensive plan contain a capital improvements element with a component which outlines the principles for correcting public facility deficiencies covering at least a five-year period. Whether the County's Plan contains such a component is not of record. In any event, even if the County failed to consider the fact that Blue Angel Parkway was not scheduled for upgrading when the amendment was adopted, given the other data and analyses available at that time (the traffic spreadsheet), which reflected that the roadway was operating below capacity, the County had sufficient information regarding infrastructure capacity to support the amendment. Based on the foregoing, it is at least fairly debatable that the amendment has adequate data and analyses relative to traffic impacts to support the land use change. Urban sprawl Finally, Petitioner asserts that no data were gathered and no analyses were performed to demonstrate that the change in land use will discourage urban sprawl. In this case, the Department did not require that the County perform an urban sprawl analysis, given the type of surrounding land uses; the relative small size of the Northern Parcel; the absence of any land use allocation problems; the ability of the owner to now place up to 18 units per acre and/or neighborhood commercial development on the property under the current LDR classification; and the fact that the Northern Parcel is located on the edge of a rapidly urbanizing area of the County. At the same time, Petitioner presented no evidence which supported the need for such a study. The Northern (and Southern) Parcel is located in a rapidly urbanizing area of the County and is close to several other urban uses. Indeed, as noted earlier, there is a Wal- Mart Super Center across the street at the northwestern quadrant of the intersection, and a mix of commercial and residential uses abut the intersection to the southeast. All four corners of the intersection have been designated as a commercial node in the County's draft Southwest Sector Plan, and the County has determined that the node continues northward on the eastern side of the road to and including the Northern Parcel. As a general rule, the Department considers the size and shape of nodes to be a local government decision, and it found no reason here to question that determination. The Plan encourages commercial development at intersectional nodes. Under Florida Administrative Code Rule 9J- 5.003(134), urban sprawl is defined in part as "urban development or uses which are located in predominately rural areas." Indicators of urban sprawl include "[t]he premature or poorly planned conversion of rural land to other uses," and the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area." The evidence does not support a finding that the amendment will result in the poorly planned conversion of rural lands, or the creation of a land use that is not functionally related to land uses that predominate the adjacent area. Given these considerations, Petitioner has not proven beyond fair debate that the plan amendment will result in urban sprawl, or that the County lacked adequate data and analyses related to urban sprawl to support the change in the land use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004.
The Issue The issues to be determined in this case are whether the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O-10, and revised in part by the remedial amendments in Ordinance Number 2010-O-01 (“Plan Amendments”), are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review comprehensive plan amendments and to determine whether amendments are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality in Volusia County and has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Hammock Creek is a Delaware limited liability company registered with the State of Florida. It owns the property that is the subject of the Plan Amendments. Through its representatives, Hammock Creek submitted comments to the Edgewater City Council at the transmittal and adoption hearings for the Plan Amendments. Petitioner Richard Burgess resides in the City, owns real property in the City, and operates a business in the City. At the public hearings on the original amendment package adopted by Ordinance No. 2008-O-10, Petitioner made comments on behalf of Edgewater Citizens Alliance for Responsible Development, Inc. (ECARD), as its vice-president. ECARD was an intervenor in this proceeding, but voluntarily dismissed its petition before the final hearing. Petitioner submitted written comments on his own behalf at the adoption hearing for the remedial amendments adopted by Ordinance No. 2010-O-01. The Plan Amendments The Plan Amendments create a new land use category, the Restoration Sustainable Community Development District (“Restoration SCD”), which is described in a new Restoration SCD Sub-Element of the FLUE: The Restoration SCD is the result of a conscious planning approach based on the most current New Urbanist research and advanced practices. The compact development pattern is designed to and shall provide for a diverse community with distinct place types and multiple experiences that are appealing to residents, employees, and visitors. It shall provide for walkability, a broad range of inclusive household demographics, the ability to connect the community directly to a natural experience, transit ready design, and a high level of environmental stewardship and planning. * * * In order to facilitate this vision, the City shall recognize that density is important to the restoration SCD outcome, but no more important than the mixing of uses, the development of a diverse population through the provision of housing choice and employment centers, the connection of streets and the design of structures and spaces on a human scale. The Restoration SCD land use category applies to 5,187 acres of land on the west side of Interstate 95 that are owned by Hammock Creek. The Restoration SCD site is not currently being used, but in the past was used for silviculture. The Restoration SCD site was annexed into the City in 2005, but is being assigned a future land use designation for the first time. The Volusia County land use categories for the property are Environmental Systems Corridor, which allows a maximum residential density of one unit per 25 acres, and Forestry Resource, which allows a maximum residential density of one unit per 20 acres, or up to one unit per five acres with clustering. The Restoration SCD Sub-Element includes the Restoration SCD Conservation/Development Areas Map, which divides the site into three areas: Conservation, SCD Conservation/Restoration, and SCD Community Development. The SCD Community Development area is also referred to as the “Build Envelope” because it is the only area where development can occur. The Build Envelope is approximately 25 percent of the total land area. At least 50 percent of the Restoration SCD site is required to be permanently protected open space. The SCD District is integrally related to a Development of Regional Impact (DRI) proposed for the lands that are the subject of the Plan Amendments. The Resolution SCD includes several of the development controls listed in Florida Administrative Code Rule 9J- 5.006(5)(j) which discourage urban sprawl, including: open space requirements; clustering; the establishment of minimum development density and intensity; phasing of urban land use types, densities, and intensities; traditional neighborhood development form; buffering; planned unit development requirements; restriction of the expansion of the urban area; and jobs-to-housing balance requirements. Edgewater is a relatively old Florida City that was developed with strip commercial along the highway and other development forms that were typical before the enactment of Chapter 163 and the requirement for comprehensive planning. The Restoration SCD introduces modern development principles and forms. Within each element of the City’s Comprehensive Plan, there are data and analysis summaries. There is also a separate section entitled “Population Projections.” The Plan Amendments revise or add information to some of these data and analysis summaries. The Plan Amendments also include some “housekeeping” changes that delete obsolete portions of the Comprehensive Plan and extend several planning horizons in the plan from 2010 to 2020. Mixed Uses Petitioner contends that the Restoration SCD lacks adequate policies to implement the types of land uses allowed, the percentage distribution among the mixed uses, or other objective measurement, and the density or intensity of each use as required by Rule 9J-5.006(4)(c). Restoration SCD is the future land use designation for the entire site. Policy 3.1.1 describes seven subcategories of uses within Restoration SCD: Residential, Mixed-Use Town Center, Work Place, Transit-Ready Corridor, Utility Infrastructure Site, Schools, and Open Space. Various policies of the Restoration SCD Sub-Element establish minimum and maximum percentages for the subcategories of uses. Table I-4 in the Plan Amendments shows the various land uses, their densities and intensities, and their acreages. The Restoration SCD land use designation has an overall residential density cap of 8,500 residential units and a non-residential intensity cap of 3,300,000 square feet. Policy 7.1.1 ensures a continuing balance of residential and non-residential development by tying the number of residential building permits that can be issued to the square footage of non-residential development that has been constructed. For example, residential units cannot exceed 1,500 until 180,000 square feet of non-residential uses have been constructed. Format Petitioner contends that the Plan Amendments are not consistent with the format requirements of Rule 9J-5.005(1) because the sources, dates, and other information associated with tables, figures, and other materials included in the Plan Amendments are not identified. Exhibit A to the new Restoration SCD Sub-Element does not show a source, preparation date or name of the preparer. FLUE Table I-3 shows a source and name of the preparer, but not a preparation date. FLUE Table I-4 shows a source, a preparation date, and name of the preparer. Within the Population Projections section of the Comprehensive Plan, Table P-1 shows a source, but not a preparation date or name of the preparer. Table P-2, Figures P-1 and P-2, and Tables P-3 through P-5 do not show sources, preparation dates, or names of the preparers. Tables P-6 and P-7 show sources and names of the preparers, but no preparation dates. Table P-9 does not show a source, preparation date, or name of the preparer. Within the Housing Element, Tables III-13 through III- 15 and Tables III-17 through III-20 show sources and names of the preparers, but no preparation dates. The tables and figures that Petitioner objects to are included in the Comprehensive Plan as supporting data and analysis. They are not parts of goals, objectives, or policies. Rule 9J-5.005(2)(e) requires that maps include major natural and man-made geographic features and city and county boundaries. The Resolution SCD Conservation/Development Areas Map does not show geographic features or government boundaries. There are other maps in the FLUE that show natural and man-made geographic features and city and county boundaries. Policies 1.1.1 and 3.1.1 refer to Map “H”, which is part of the DRI Development Order. Petitioner objects to the omission of Map “H” from the Comprehensive Plan. The Director of the Department’s Division of Community Planning stated that it is not the practice of the Department to treat a format error or omission as requiring a determination that a plan amendment is not in compliance. Adoption by Reference Petitioner contends that the Plan Amendments adopt regulations and other materials by reference, but not in accordance with Rule 9J-5.005(2)(g), which requires that the reference “identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted.” Petitioner asserts that the following provisions include inadequate adoptions by reference: Policy 1.1.1, Policy 3.1.1, Objective 4.1, Policy 4.1.3, Policy 4.1.7, Policy 4.1.11, Goal 5, Policy 6.1.1, Policy 8.1.4, Policy 9.1.1, Policy 10.1.1, Policy 11.1.1, Policy 11.1.4, and Policy 12.1.6. Policies 1.1.1 and 3.1.1, Objective 4.1, and Policies 4.1, 4.1.3, 4.1.7, and 4.1.11 refer to state, regional, and federal laws or regulatory programs, but they do not purport to adopt these laws and programs by reference. The purpose of these provisions is not for the City to apply or have any role in the regulatory process or decision-making associated with the referenced laws and programs. The wording of these provisions is consistent with the City’s assertion that its intent is merely to provide notice of related permitting programs with which the developer will have to comply. Goal 5 refers to New Urbanism and other land use design principles as described in the literature of the Congress of New Urbanism, the Urban Land Institute and similar organizations, but the goal does not purport to adopt this literature by reference. The goal states that design policies will be adopted by the City in the future. No specific design principles are adopted, by reference or otherwise, in Goal 5. Policy 6.1.1 refers to affordable housing and defines the term as a percentage of Volusia County’s Average Median Income. The policy does not purport to adopt any materials by reference. Policies 8.1.4 and 11.1.1 refer to design principles which are to be adopted in the future. The policy does not purport to adopt this literature by reference. No specific design principles are adopted, by reference or otherwise, in Policies 8.1.4 or 11.1.1. Policy 9.1.1 addresses school concurrency and refers to a Capacity Enhancement Agreement (“CEA”) entered into by the City, the developer, and the Volusia County School Board to ensure that schools are timely planned and constructed to serve the student population. The policy does not purport to adopt the CEA by reference. Petitioner did not show that the CEA is not self-executing. Policy 10.1.1 refers to “green” development practices that meet the certification programs of the United States Green Building Coalition or the Florida Green Building Code, which will be incorporated into the DRI Development Order. The policy does not purport to adopt these certification programs by reference. No specific green design practices are adopted, by reference or otherwise, in Policy 10.1.1. Policy 11.1.4 refers to vehicle trips as calculated by the Institute of Transportation Engineers Trip Generation Manual. This is the standard manual used by all traffic engineers. The policy does not purport to adopt the manual by reference. Planning Timeframes Petitioner contends that the Plan Amendments cause the Comprehensive Plan to be internally inconsistent because there are different planning horizons in the Plan. The Plan Amendments extend several planning horizons to 2020, but the planning horizon in the Recreation and Open Space Element remains 2010, the water supply work plan has a planning horizon of 2018, and the Public School Facilities Element has a planning horizon of 2025. Petitioner did not identify an adverse effect created by the different planning horizons. The City is currently preparing its Evaluation and Appraisal Report (EAR)-based amendments. The EAR process is statutorily mandated, periodic review and update of the entire Comprehensive Plan. It is the logical process for reviewing and revising planning horizons in the plan. Conservation Element and Housing Element Data Petitioner contends that the support documentation that is included as part of the Conservation Element is not the best available data. However, Petitioner did not produce better data, except for the Florida Fish and Wildlife Conservation Commission’s more recent listed species rules, or show how better data do not support the Plan Amendments. Similarly, Petitioner contends that some of the support documentation that is included as part of the Housing Element is not the best available data. Petitioner did not produce better data or show how better data do not support the Plan Amendments. Need Petitioner contends that the best available data do not show a need for the residential and nonresidential land uses allowed by the Plan Amendments. The Population Projections section in the Comprehensive shows a projected City population of 34,481 by 2020. The Department determined that the 2020 population forecast was reasonable. It is not the practice of the Department to require local governments to update their population projections every time an amendment is adopted. The 2020 population projection is derived from forecasts of the University of Florida’s Bureau of Business and Economic Research BEBR. BEBR forecasts county populations, from which city population projections must be extrapolated. BEBR frequently under-forecasts population growth for cities. BEBR forecasts do not account for localized factors that can change the attractiveness of a particular area to prospective new residents and, therefore, stimulate population growth. Applying an “allocation factor,” the Department determined that the number of residential units allowed by the Plan Amendments was reasonably in line with the 2020 forecast. An allocation factor is a multiplier applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. In addition, population projections are not the sole consideration in determining the need for a plan amendment. In the case of the Restoration SCD, higher densities and intensities are necessary as a part of the intended development form. Higher densities and intensities are also necessary to achieve the objectives of Section 163.3177, Florida Statutes, including the encouragement of transit-oriented and energy-efficient communities. A need analysis for non-residential land uses in the Resolution SCD was not conducted by the City because the non- residential uses are intended to serve and be integrated with the residential uses, and are required to be developed in pace with the residential development. The Department found this approach acceptable.
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 finding that the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O- 10 and revised by Ordinance Number 2010-O-01, are “in compliance.” DONE AND ENTERED this 27th day of July, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2010.
Findings Of Fact Based upon all of the pleadings and evidence, including the stipulation by counsel, the following findings of fact are determined: Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan, which is the subject of the dispute. Petitioners, Henry and Betty Prominski, are residents of Marion County and own a 16.5 acre tract of land on the southeast bank of Lake Weir in the southeastern portion of the County. The property is more commonly known as Orangewood Shores Subdivision. Until April 1994, the land was classified in the urban expansion category, which allows up to four residential units per acre. The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County eventually adopted certain remedial amendments on April 7, 1994, one of which changed the land use designation on petitioners' property from urban expansion to urban reserve. Under the new classification, only one residential unit per ten acres is allowed. A cumulative notice of intent to find the plan and remedial amendments in compliance was issued by the DCA on May 30, 1994. During the foregoing process, petitioners timely submitted oral or written objections to the County concerning the plan amendment, and thus they are affected persons within the meaning of the law. On September 14, 1994, the County, through its Staff Vesting Committee, issued Vesting Order No. 94-14, which granted petitioners' application for vesting determination on Orangewood Shores Subdivision. Among other things, the order determined that "the applicant has vested rights to complete the development (known as Orangewood Shores Subdivision) without aggregation of lots providing the applicant continues development activity in good faith." In this regard, petitioners have represented that they intend to "continue development activity in good faith," and they do not intend to vacate their plat. They also recognize that their land is vested from the plan amendment. Despite the lack of any viable issues regarding the development of their property, for the sake of "principle" only, they still wish to contest the de facto reclassification of their property. The foregoing language in the Vesting Order means that petitioners have vested rights to complete the development of their land notwithstanding the change of land use designation from urban expansion to urban reserve. The parties also agree that the effect of the Vesting Order is to vest the property from the comprehensive plan and the restrictions of the urban reserve area. Therefore, within the narrow context of the petition, the thrust of which is that the plan amendment prevents the subdivision's development, the issues raised therein are no longer viable, and petitioners do not have a cognizable interest in the outcome of this proceeding. The controversy is accordingly deemed to be moot.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the petition in this case on the ground the issues raised therein are moot. DONE AND ENTERED this 21st day of June, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 21st day of June, 1996. COPIES FURNISHED: Henry J. Prominski, Esquire Post Office Box 540 Weirsdale, Florida 32195-0540 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
The Issue The issue is whether that portion of Plan Amendment 98-1ER known as LU-97-02 is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background In this land use dispute, Petitioners, Janet Bollum (Bollum) and Glenn and Mary Brewer (the Brewers), who are property owners within or near the City of Deland, contend that a portion of Plan Amendment 98-1ER adopted by Respondent, City of Deland (City), is not in compliance. The portion of the amendment under challenge, known as Plan Amendment LU-97-02, changes the land use on 39.56 acres of land owned by Intervenor, Marcia Berman, Trustee (Berman), to Highway Commercial. The property is currently under contract to be sold to Intervenor, Wal-Mart Stores East, Inc. (Wal-Mart), who intends to construct a Wal-Mart super store on a part of the site. Respondent, Department of Community Affairs (Department), is the state agency charged with the responsibility of reviewing comprehensive land use plans and amendments. Until 1997, the Berman property was located in the unincorporated area of Volusia County (County). Prior to 1994, it carried an Urban Medium Intensity land use designation. That year, the County redesignated the property as Industrial. In 1997, the City annexed the Berman property and revised its Future Land Use Map the following year to change the land use to Highway Commercial. This change was accomplished through the plan amendment under challenge. On May 1, 1998, the Department issued its Statement of Intent to Find Portions of Plan Amendment Not in Compliance. More specifically, it found that the new land use designation would "generate traffic which causes the projected operating conditions of roadways to fall below adopted level of service standards and exacerbates projected roadway deficiencies." The Department also found that the amendment was "not supported by or based on, and does not react in an appropriate way to, the best available data and analyses." In making these findings, the Department relied in part upon a traffic study prepared by "TEI" in 1998 which reflected that the City's traffic system did not have sufficient capacity to accommodate the new land use. The Department determination triggered this action. On May 27, 1998, Petitioners, and 82 other property owners, filed a paper styled "Petition for Administrative Hearing and Petition to Intervene" challenging the change of land use on the Berman property in numerous respects. The paper was treated as a petition to intervene and was later granted. After the case was temporarily abated in August 1998 pending efforts to settle the matter, in January 1999, a new traffic study was prepared for the City by Ghyabi, Lassiter & Associates (GLA study), which determined that the existing and planned City transportation network could accommodate the impacts from the development allowed under the amendment. All parties except Petitioners then executed a Stipulated Settlement Agreement in February and March 2000, which resolved all issues originally raised by the Department. Thereafter, the Department issued an Amended Notice of Intent to find the plan amendment in compliance. As required by Section 163.3184(16)(f), Florida Statutes (1999), the parties were realigned consistent with their respective positions. Through an Amended Petition filed by Petitioners on July 19, 2000, all original Petitioners except Bollum and the Brewers have been dismissed, and the factual issues in this case narrowed to two: (a) whether the recent traffic studies "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)"; and (b) whether the "plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent." Standing of the Parties Bollum owns property, resides within, and owns and operates a business within the City. She also submitted written and oral comments to the City while the amendment was being adopted. The parties have stipulated that she is an affected person and thus has standing to participate. The Brewers own property and reside in an unincorporated area of the County in the immediate vicinity of the proposed plan amendment. They also reside within what is known as the "Greater Deland Area," as defined by Chapter 73-441, Laws of Florida. However, they do not own property, reside within, or own and operate a business within the corporate limits of the City, and thus they lack standing to participate. The parties have stipulated that Intervenors Berman and Wal-Mart have standing to participate in this proceeding. The Amendment The Berman property lies on the eastern side of U.S. Highway 17 just north of the intersection of U.S. Highways 17 and 92, approximately three miles north of the City's central business district. The land is currently undeveloped. Prior to being annexed by the City, the property was located within the unicorporated area of the County, just north of the City limits. The earliest County land use designation was Urban Medium Intensity, a primarily residential land use classification which also allowed some commercial development, including small neighborhood shopping centers. In 1993, the County began a comprehensive examination of land use and zoning restrictions in the vicinity of the Berman property. In May 1994, it redesignated the Berman property from Urban Medium Intensity to Industrial. This use allowed not only industrial development, but also some commercial development. Before the Berman property was annexed by the City, it was depicted on the City's Urban Reserve Area Map (map). That map established advisory designations for unincorporated County land abutting the City, and was meant to be a guide for City land use decisions when property was annexed. The property was designated on the map as approximately one-half Commercial and one-half Industrial. In 1997, the Berman property was annexed by the City. Because the City was then required to place a land use designation on the property, on May 16, 1998, it adopted Amendment 98-1ER, which redesignated the property from Volusia County Industrial to City Highway Commercial. The new mixed-use designation allows "a wide range of retail and service and office uses," as well as up to twenty percent residential land uses, including multi-family manufactured housing developments. Thus, the Highway Commercial land use designation is meant to accommodate major shopping centers like the one proposed by Wal-Mart. Transportation issue In their Amended Petition, Petitioners allege that accepting as fact the "most recent traffic studies," those studies still "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)." The "most recent traffic studies" are the GLA study, and it shows that the existing and planned City transportation network can accommodate the traffic impacts arising from development allowed under the plan amendment. Some of the transportation impacts from the expected development on the Berman property will affect roadways within an area of the City that was formally designated in May 1992 as a Special Transportation Area (STA) or road segments with specialized level of service (LOS) standards. The STA includes the central business district and certain outlying areas essentially bounded by Minnesota Avenue, Amelia Avenue, the rear property lines of properties along the north side of New York Avenue (State Road 44), South Hill Avenue, Beresford Avenue, Boundary Avenue, and Clara Avenue, which extend to approximately one mile from the Berman property. None of the roadways within the STA are on the Florida Intrastate Highway System. Rule 9J-5.0055(2), Florida Administrative Code, requires that the City adopt LOS standards on roadways within its planning jurisdiction (which are not on the Florida Intrastate Highway System), including the disputed portion of U.S. Highways 17 and 92. The applicable LOS standards and STA provisions are found in Policies 3.1.7 and 3.1.10, respectively, of the Transportation Circulation Element of the plan. They read as follows: 3.1.7 For those roadways listed in Policy 3.1.6 [which include U.S. Highways 17 and 92], the City of Deland may permit development to occur until the peak hour traffic volumes exceed a 20% increase over the peak traffic counts published in the FDOT's 1989 Traffic Data Report. 3.1.10 As a result of FDOT's approval of the STA designation for US 17/92 (Woodland Boulevard), from Beresford Avenue to Michigan Avenue, and SR 44 (New York Avenue), from SR 15A to Hill Avenue, the following maximum LOS and/or traffic volumes shall be permitted. ROADWAY SEGMENT US 17/92, from Beresford to Michigan = 22,028 SR 44, from SR 15A to US 17/92 = LOS E SR 44, from US 17/92 to Hill = LOS E *The proposed maximum traffic volume is compatible with the maximum LOS for this section of roadway, as stated in Policy 3.1.7. These two policies have been found to be in compliance and are not subject to challenge in this proceeding. Although the STA is identified as a specific area, the City's Comprehensive Plan anticipates that development from outside of this area will impact the STA. As noted above, however, the undisputed GLA study demonstrates that the plan amendment will not allow development which would cause these adopted LOS standards to be exceeded. The STA was approved in May 1992, or prior to the enactment of Section 163.3180, Florida Statutes (1993), which allows certain exceptions from the otherwise blanket requirement to adopt and enforce a transportation LOS standard for roadways. Two planning tools made available to local governments by Section 163.3180(5), Florida Statutes (1993), are a Transportation Concurrency Exception Area (TCEA) and a Transportation Concurrency Management Area, both of which allow exceptions to transportation concurrency requirements. The practical effect of a TCEA is to allow development to proceed without having to comply with transportation concurrency. Petitioners essentially contend that the STA created by the City for the central business district and certain outlying areas is "the substantial equivalent of a TCEA," and thus it should be treated as one for purposes of this proceeding. They go on to argue that while the City may grant an exception to concurrency requirements for transportation facilities for projects located within a TCEA, those benefits cannot be extended to any other area, including the Berman property. Based on this premise, Petitioners conclude that without the benefit of the TCEA exception, the anticipated traffic from the new development on the Berman property will cause a "continuation of a [LOS] failure on the constrained segments of US 17/92 and on the unconstrained segment from SR44 to Wisconsin Avenue," in violation of the law. Petitioners' contention is based on an erroneous assumption. The evidence shows that the City has never adopted a TCEA. Neither has the STA "transformed" into a TCEA, as Petitioners suggest. Moreover, as noted above, the undisputed GLA study shows rather clearly that the plan amendment will not allow development which would cause the adopted LOS standards to be exceeded. Petitioners further contend that the plan amendment is somehow inconsistent with the transportation exception requirements in Section 163.3180(5)(b) and (c), Florida Statutes (2000). However, these provisions apply to developments "which pose only special part-time demands on the transportation system[,]" that is, "one that does not have more than 200 scheduled events during the calendar year and does not affect the 100 highest traffic volumes." The evidence shows that the Highway Commercial land use category is not designed for such developments and, in fact, encourages far more intense uses. Is There a Need for Additional Commercial Land? Petitioners next contend that "the plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent and not resolved by the Compliance Agreement." In the immediate vicinity of the Berman property, near the intersection of U.S. Highways 17 and 92 north of the City, "there is an emerging trend of 'regional-type' commercial developments." This area is already partially developed with commercial uses, and it has additional areas depicted for future commercial and industrial use. There are no other parcels in the City, especially in this area, of a sufficient size to accommodate this type of regional commercial development. There are numerous ways to project the raw, numerical need for commercial land in the City. The City's Comprehensive Plan, its Evaluation and Appraisal Report, and the GLA study all contain statements regarding projected population and employment, each portraying a slightly different result. In fact, Petitioners' own expert criticized the numbers used in these documents as being unreliable and suspect. The need calculus basically involves projecting population over a ten-year planning period and then allocating commercial, residential, and other land uses in an amount to match that projection. For the reasons set forth below, this process is imprecise, and it must be tempered by other factors. First, the planner must project population over the ten-year planning timeframe. Any mistake in this projection will skew the numbers. Second, employment ratios used in the calculus can change from year to year, especially in a smaller community. Also, other planning objectives are inherently subject to change year by year. Given this imprecision and changing market demands, it is appropriate for professional planners to overallocate land uses. An excess allocation of twenty-five percent (or an allocation factor of one hundred and twenty-five percent) is recognized by professional planners as being appropriate. The evidence supports a finding that this amount is reasonable under the circumstances present here. There are numerous professionally acceptable ways in which to allocate land uses. The City has not adopted a particular methodology in its Comprehensive Plan. The specifics of the plan amendment and the City's Comprehensive Plan make application of a strict numerical calculus even more difficult. The prior designation of the property was Industrial, which is not a pure industrial category, but actually allowed up to thirty percent of commercial uses. The amendment here simply changes the land use from Industrial, with some commercial uses allowed, to a mixed-use Highway Commercial designation. As noted earlier, the City's Comprehensive Plan anticipates regional commercial uses in the area of the Berman property. Finally, the parcel is relatively small (less than 40 acres) and is embedded within an urban area. Given the uncertainty of a numerical calculation of commercial need in the City, the size and location of the property, the property's inclusion in an urban area, and the surrounding commercial land uses, the evidence supports a finding that either Industrial or Commercial would be an appropriate land use for the property. The evidence further supports a finding that the need question is not a compliance issue here and does not support a finding that the plan amendment is not in compliance.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining Plan Amendment 98-1ER adopted by the City of Deland by Ordinance Number 98-07 on March 16, 1998, to be in compliance. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2000. COPIES FURNISHED: Steven M. Siebert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 C. Allen Watts, Esquire Cobb, Cole & Bell Post Office Box 2491 Daytona Beach, Florida 32115 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 F. Alex Ford, Jr., Esquire Landis, Graham, French, Husfeld, Sherman & Ford, P.A. Post Office Box 48 Deland, Florida 32721-0048 Mark A. Zimmerman, Esquire James, Zimmerman, Paul & Huddleston Post Office Drawer 2087 Deland, Florida 32721-2087 David L. Powell, Esquire Hopping, Green, Sams & Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Margaret E. Bowles, Esquire Margaret E. Bowles, P.A. 205 South Hoover Street Suite 402 Tampa, Florida 33609 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issues in this case are whether two City of Palm Bay Comprehensive Plan Amendments, one of which was "small scale development amendment" under Section 163.3187(1)(c), Florida Statutes, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Brevard County (County) is a political subdivision of the State of Florida. See Section 7.05, Florida Statutes. The County is bordered on the north by Volusia County, on the west by Volusia, Orange, and Osceola Counties, on the south by Indian River County, and on the east by the Atlantic Ocean. The City of Palm Bay (City) is a municipality in southeast Brevard County, just to the southwest of the City of Melbourne. In its extreme northeast, the City borders on the Intracoastal Waterway. From there, it fans out to the southeast, surrounded on all sides by the County. The Department of Community Affairs (DCA) 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. The Small-Scale Amendment: Review and Adoption On June 3, 1999, William Wilson submitted an application to amend the City's Future Land Use Map (FLUM) for a 1.1558-acre (small-scale) parcel of land in the unincorporated County at the southeast corner of the intersection of Valkaria Road (an east/west thoroughfare) and Babcock Street (a north/south thoroughfare), in anticipation of annexation by the City. In this vicinity, the unincorporated County lay to the east, across Babcock Street, between the City and the Intracoastal Waterway. The unincorporated County land to the north, east, and south of the parcel had a future land use designation of "Residential" on the County's FLUM; the City land to the west had a residential future land use designation on the City's FLUM. The requested amendment was from the existing County "Residential" designation to City "Commercial." A zoning change also was requested from County AU (Agricultural Residential) to City CC (Community Commercial). The parcel subject to the small-scale amendment request has a single-family home and free-standing residential garage located onsite. Projected impacts from commercial development on the parcel met all relevant City level of service (LOS) standards. (The County has not put environmental suitability at issue with respect to the parcel.) The City planning staff recommended approval of the requested plan amendment; staff recommended approval of the zoning change but to City NC (Neighborhood Commerical). These requests were heard by the City Planning and Zoning Board, sitting as the local planning agency (LPA), on October 20, 1999. The LPA voted to recommend to the City Council that the plan amendment be approved and that the zoning change to City NC also be approved. By Ordinance 2000-08, adopted on March 2, 2000, the City annexed the small-scale parcel, effective immediately upon enactment of the Ordinance. By Ordinance No. 2000-09, also adopted on March 2, 2000, the City Council granted the request to change the future land use designation of the parcel on the City's FLUM to City "Commercial." By Ordinance No. 2000-10, zoning on the parcel was changed to City NC. The Large-Scale Amendment: Review and Adoption On July 6, 1999, Brian West submitted an application to amend the City's FLUM for a 19.57-acre parcel on the northeast corner of the intersection of Valkaria Road and Babcock Street (immediately north of the small-scale parcel, across Valkaria), in anticipation of annexation by the City. The requested amendment was from the existing Brevard County "Residential" designation to City "Commercial" future land use. A zoning change from County AU (Agricultural Residential) to City CC (Community Commercial) also was requested. This 19.57-acre (large-scale) parcel is vacant. The County has not put environmental suitability at issue with respect to the large-scale parcel. The City's planning staff recommended approval of the requested plan amendment, which was heard by the City's Planning and Zoning Board, sitting as the LPA, on October 20, 1999, along with the small-scale request. The LPA voted to recommend to the City Council that the large-scale amendment be denied. On February 15, 2000, the City Council conducted a special meeting to consider the requested large-scale annexation, plan amendment, and zoning change and voted to approve the requests. However, at the time, the City also was in the process of developing plan amendments in response to its Evaluation and Appraisal Report (EAR); as a result, transmittal to DCA was deferred until transmittal of the EAR-based amendments. On January 18, 2001, the City Council met in regular session and voted to transmit the requested large-scale amendment to DCA, along with the other EAR-based amendments. On May 17, 2001, DCA issued its Objections, Recommendations, and Comments (ORC) Report regarding the transmitted comprehensive plan amendments. DCA raised several objections and made comments regarding the amendment. The ORC Report was received by the City on May 21, 2001. (The greater weight of the evidence was contrary to testimony of the City's Planning Manager that the ORC Report received on that date was incomplete.) On October 2, 2001, the City Council adopted Ordinance No. 2001-65, which adopted the requested amendment for the large-scale parcel from County Residential to City Commercial future land use. The EAR-based amendments also were adopted on the same date by Ordinance 2001-66. By Ordinance 2001-86 adopted on November 1, 2001, the City annexed the large-scale parcel, effective immediately. Re-Adoption of Plan Amendments at Issue At some unspecified time after October 2, 2001, the City became aware of concerns voiced by DCA regarding the sequence and timing of the large-scale annexation and FLUM amendment. To address these concerns, the City adopted Ordinance No. 2001-105 on December 20, 2001. This Ordinance repealed and re-adopted Ordinance No. 2000-65. At some unspecified time after March 2, 2000, the City became aware of concerns raised by DCA that adoption of the small- scale FLUM amendment took place before the City adopted plan amendments to comply with new school siting requirements, contrary to a statutory prohibition. In order to address these concerns, the City adopted Ordinance No. 2000-79 on January 4, 2001, to repeal and re-adopt Ordinance No. 2000-09, re-designating the small-scale parcel for "Commercial" future land use. DCA Notice of Intent and City's EAR-Based Amendments On January 21, 2002, DCA published a Notice of Intent to find the readopted large-scale amendment "in compliance." DCA subsequently caused to be published a Notice of Intent to find this readopted amendment "in compliance." The EAR-based amendments adopted on October 2, 2001, included certain text amendments, but these amendments had no direct bearing on the plan amendments at issue in this case. All plan text provisions relating to the plan amendments at issue in this case remained "substantially the same" after the EAR-based amendments. Need for Additional Commercial Future Land Use and Internal Consistency The County contends that analysis of the data in existence at the time of adoption of the plan amendments at issue in this case does not support a need to change the future land use on these parcels from County Agricultural Residential to City Commercial. But the following Findings are based on these data and analysis. City data and analysis dated January 2001 indicated in pertinent part: In 2011 the City will need 719 acres of commercial land and at buildout, will need approximately 1,725 acres. The Future Land Use Map currently allocated approximately 1,612 acres for commercial and office development. This is slightly below the needs identified over the long term time periods. The expansion of existing Activity Centers and the development of new Activity Centers should easily accommodate this minor increase. Between now and the next required Plan update in 2007, the City should analyze the available commercial land to determine if existing designated lands are appropriately located or whether new areas should be established and existing designations converted to other land use types. Of particular interest in that regard would be the large amount of neighborhood commercial presently designated but which is primarily vacant. It was not clear from the evidence how the acreage figures in the data and analysis were calculated. It does not appear from the evidence that the figure for commercial acreage "needed" included any "cushion" or "margin of error." If the City has more land allocated for commercial future land use than is expected to be "needed" within the planning horizon of its Comprehensive Plan (the year 2011), it may be the result of pre-platting of the City by General Development Corporation. If so, the City also has an even greater excess of acreage allocated for residential future land use since approximately 90 percent of the City was pre-platted for small, quarter-acre residential lots. As a result of pre-platting, it now appears that, at build-out (expected in about 20-30 years), the City will have an excess of allocated for residential land use and a shortage of acreage allocated for commercial land use (among other non-residential uses.) As a result, there is a current need to begin to reduce the amount of acreage allocated for residential future land use and add commercial acreage (as well as other non-residential uses.) A disproportion of City land allocated to commercial future land use is in the northern part of the City, between Malabar Road and Palm Bay Road, a considerable distance from the intersection of Babcock Street and Valkaria Road. Before the plan amendments at issue in this case, there was hardly any commercial future land use in the City in the vicinity of the Babcock/Valkaria intersection. Almost all of what little commercial future land use could be found in the vicinity was in small parcels--the single exception being a 15-acre parcel at the intersection of Eldron and Grant approximately two miles to the south. There also was very little land allocated to commercial future land uses in the unincorporated County anywhere near the Babcock/Valkaria intersection. Almost all of the unincorporated County in the vicinity had Rural Residential future land use. There was some County Neighborhood Commercial across Babcock from the 15- acre parcel of City Commercial two miles to the south of the intersection. There also was some County Neighborhood Commercial and a small amount of County Community Commercial future land use east of Babcock about a mile to the north of the intersection. A 40-acre parcel approximately 650 feet to the east of the intersection was changed from County rural residential to general commercial zoning in 1988. But at around the time the City began to process the plan amendments at issue in this case, the County purchased the land and re-designated it for Public future land use and GML (Government-Managed Land) zoning. Most of the City's population growth in the last 20 years has been in the southern and western part of the City, to the west of the Babcock/Valkaria intersection. Between 1986 and 1999, residential development within 2-3 miles of the amendment sites increased approximately 160 percent. As a result, whereas 17 years ago most of the City's population was east of Interstate 95, now approximately half the population resides west of Interstate 95 (although 60 percent still resides north of Malabar Road.) Due to the sparse commercial use in the vicinity, either in the City or the unincorporated County, there is a need for more land designated for commercial future land uses in the southern part of the City to serve the rapidly growing population in that area. The applicant for the large-scale amendment submitted a letter projecting a need for 1.5 million square feet of retail space in the City based on a comparison of "current space" with average retail space per capita in Florida. The County criticized the professional acceptability of this submission as data and analysis to demonstrate need for additional commercial acreage in the City. Standing alone, the submission may be fairly subject to the County's criticism; but considered along with the other data and analysis, the submission adds to the demonstration of need for the plan amendments. It was estimated that commercial uses at the intersection of Babcock and Valkaria will generate an additional 12,000 vehicle trips on Babcock in the vicinity of its intersection with Valkaria. This estimate further demonstrates a need for additional commercial future land use in the vicinity. At least some of the vehicle trips expected to be generated in the vicinity of the Babcock/Valkaria intersection as a result of adding commercial future land use there would correspond to a reduction in vehicular traffic from the southern part of the City to and from commercial areas in the northern part of the City. For that reason, by helping balance the amount of commercial land use available in the northern and southern parts of the City, adding commercial future land use in the southern part of the City could be reasonably expected to reduce traffic overall. Commercial land uses generally generate higher tax revenue and demand fewer government services than residential land uses. Meanwhile, the City provides most of the government services in the Babcock/Valkaria vicinity and has a backlog of infrastructure projects. For that reason, an economic benefit reasonably is expected to accrue to the City from adding commercial in the southern part of the City.2 Future Land Use Element FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon area need. . . ." FLU Policy 3.1A states: "The acreage of commercial land permitted by the Future Land Use Map shall not exceed projected needs." The County did not prove that the proposed FLUM amendments are inconsistent with either this Objective or this Policy. The plan amendments at issue are based upon area need and do not exceed projected needs, as reflected in the data and analysis. Compatibility and Internal Consistency The County contended that City Commercial future land use for the amendment parcels is incompatible with surrounding land uses and internally inconsistent with provisions the City's FLU Objective 2.3, to: "Prevent incompatible land uses from locating in residential areas in order to promote neighborhood stability and prevent deterioration." In the unincorporated County to the east of Babcock Street, there are primarily large-lot, rural residential land uses with some agricultural uses such as horses and tree-farming. But, as indicated, there are platted residential lots in the City to the west of Babcock Street that are urban (or suburban) in character. During the course of these proceedings, the County abandoned its contentions as to incompatibility of the small-scale amendment except for the existence of a residential structure on the property. In arguing that the existence of the residential structure on the property makes commercial future land use incompatible, the County relied on the City's zoning LDRs. But zoning and consistency of zoning with the requirements of zoning LDRs are not at issue in this comprehensive plan amendment case. See Conclusion 52, infra. Even if zoning and consistency with zoning LDRs were at issue, the applicant's residential structure would not defeat the applicant's proposed future land use change; rather, granting the application would mean that use of the residential structure would have to be discontinued after the future land use change. As to the large-scale amendment, the County also relies in part on alleged inconsistency with an LDR--in this instance, the City's LDR for Community Commercial zoning that these areas are "to be primarily located in or near the intersection of arterial roadways." But, again, zoning and consistency of zoning with the requirements of zoning LDRs are not issues for determination in this comprehensive plan amendment case. Id. Even if zoning and consistency of zoning with the requirements of zoning LDRs were at issue, consistency and compatibility still would be fairly debatable. The evidence was that Valkaria was designated as a collector road at the time of adoption of the proposed large-scale amendment and that Babcock was designated as an arterial roadway to the north of Valkaria and as a collector to the south of Valkaria. The City characterized Babcock as a minor arterial. By its terms, the LDR in question does not prohibit Community Commercial zoning except in or near the intersection of arterial roadways; it only provides that these areas are to be located primarily in or near these intersections. Even if City Community Commercial zoning were clearly inconsistent with the City's LDR for Community Commercial zoning, City Neighborhood Commercial zoning has no similar provision for location vis-a-vis arterial roads. Since the City only has one commercial future land use category, City Commercial would be the appropriate City future land use designation for City Neighborhood Commercial zoning. The County's contentions as to the large-scale amendment also are seriously undermined by the existence of both County Community Commercial and County Neighborhood Commercial future land use east of Babcock. In addition, a County-sponsored Small Area Study (SAS) of approximately 11,500 acres of land east of the intersection along Valkaria Road recommended County Neighborhood Commercial future land use for the northeast and southeast corners of the intersection of Babcock and Valkaria (as well as County Restricted Neighborhood Commercial zoning). As indicated, the City's Comprehensive Plan does not distinguish between the two categories of commercial future land use and, if any commercial future land use is compatible with surrounding land uses, City Commercial future land use is appropriate. Contrary to the County's argument, it makes no difference to the appropriateness of City Commercial future land use that County Neighborhood Commercial future land is more limited than City Commercial future land use (or that County Restricted Neighborhood Commercial zoning is more limited than City Community Commercial zoning). The County argued that the large-scale future land use amendment was inconsistent with City FLUE Policy 2.3A, which states that LDRs must "continue to contain provisions to ensure that land uses surrounded by and/or abutting residential areas are not in conflict with the scale, intensity, density and character of the residential area." There is nothing about the proposed FLUM changes that is inconsistent with this Policy. Consistency of LDRs with this Policy is not at issue in this proceeding. See Conclusion 53, infra. The County also questioned the adequacy of buffer between commercial uses on the large-scale parcel and nearby residential uses. Precise questions as to the adequacy of buffer are decided under the LDRs, during site development review and permitting. However, it is noted that there is a 50-foot wide "paper street" (i.e., a platted right-of-way that never was developed as a street) to the west of the large-scale parcel. In addition, zoning as City Community Commercial was conditioned upon additional buffer to the east (25 feet wide) and to the north (50 feet wide). Consideration also is being given to a Habitat Conservation Plan of an undetermined size in the northern portion of the site for use as a "fly-over" for scrub jays. In addition, actual use of the residential land in the unincorporated County to the north of the large-scale parcel includes a car repair business with garage and approximately 15 cars in various states of disrepair.3 For all of the foregoing reasons, the evidence did not establish either internal inconsistency or incompatibility of commercial uses on the large-scale parcel with existing residential uses. Infrastructure and Internal Consistency At the time of adoption of the plan amendments at issue, central water and sewer services had not yet been extended to the two parcels. However, it was clear from the evidence that adequate central water and sewer capacity existed to accommodate commercial development on these parcels and that central water and sewer was being extended to the parcels. The Capital Improvements Element of the City's Comprehensive Plan listed $1.7 million being budgeted for water and sewer improvements in fiscal year 2001/2002, and in excess of $15.3 million budgeted in fiscal year 2002/2003. FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon . . . the availability of supporting infrastructure." The County did not prove that the proposed plan amendments are inconsistent with this Objective. Urban Sprawl and Internal Consistency The County maintains that the proposed plan amendments exacerbate urban sprawl. But the County provided no detailed analysis of the indicators of urban sprawl in Rule 9J-5, Florida Administrative Code, to support its contention. In arguing urban sprawl, the County relied on its contentions that there was no demonstrated need to convert County rural residential land use to City commercial land use. This argument has been rejected. See Findings 20-31, supra. The County's urban sprawl argument also focused on uses in the unincorporated County east of Babcock and characterizes the plan amendments as placing commercial land use in a rural area. This focus and characterization ignores the existence of urban residential uses in the City west of Babcock. Seen in proper perspective, the proposed plan amendments allow commercial land use that would tend to mitigate and discourage the kind of urban sprawl promoted by the pre-platting of the City. Instead of having to travel to access commercial uses in distant parts of the City, City residents in the vicinity would have a much closer option under the proposed amendments (as would County residents in the vicinity). FLU Objective 1.4 in the City's Comprehensive Plan is to: "Establish a Growth Management Area to control urban sprawl." FLU Policy 1.4B states: "City funds shall not be utilized to expand public facilities and services for future growth outside of the established Growth Management Area." The small-scale parcel was outside the established Growth Management Area (GMA) at the time of adoption of the small-scale amendment. But it does not follow that the small-scale amendment constitutes urban sprawl. Nor does it follow that the small-scale amendment is inconsistent with either the Objective or the Policy. The small-scale amendment can be made a GMA before any City funds are used to expand public facilities and services for future commercial use of the small-scale parcel.
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 finding both the small-scale amendment and the large- scale amendment of the City of Palm Bay (adopted by Ordinance 2000- 79 and by Ordinance 2001-105, respectively) "in compliance." DONE AND ENTERED this 16th day of December, 2002, 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 16th day of December, 2002.
The Issue The issue is whether proposed rules 9J-5.026(3)(d), (7)(b), (7)(c)4. and 6., (8)(a), (9)(a)3., 6., 18., and 19., and 9J- 11.023(2), (4), and (5), and existing Florida Administrative Code Rule 9J-5.003(80) are invalid exercises of delegated legislative authority for the reasons alleged in the Petition for Administrative Hearing to Challenge Proposed Amendments to Chapters 9J-5 and 9J-11, F.A.C. and to Challenge Existing Rule 9J-5.003(80) (Petition).1
Findings Of Fact Based on the evidence presented by the parties, the following findings are made: The Parties Petitioners are not-for-profit organizations whose members own real property throughout the State. A substantial number of their respective members own real property which could be amassed as one or more areas in the RLSA program. Some members of these organizations have taken steps in an effort to have their land designated as an RLSA. On behalf of their respective members, each Petitioner has a substantial interest in public policy relating to land use planning, growth management, and the protection of agricultural, rural, and conservation lands. Respondent, Department of Community Affairs (Department), has stipulated to the facts necessary to establish standing for each Petitioner. The Department is the state agency charged with implementing the review provisions of the Local Government Planning and Land Development Regulation Act codified in Sections 163.3164, et seq., Florida Statutes. The Original Statute Creating the RLSA Program Because of the complexity of the subject matter, a recitation of the RLSA program's history is appropriate. In 2001, the Legislature enacted Chapter 2001-279, Laws of Florida, codified as Section 163.3177(11)(d), Florida Statutes, which created the RLSA pilot program. The law became effective on July 1, 2001, and stated: It is the intent of the Legislature that rural land stewardship areas be used to further the following broad principles of rural sustainability: restoration and maintenance of the economic value of rural land; control of urban sprawl; identification and protection of ecosystems, habitats, and natural resources; promotion of rural economic activity; maintenance of the viability of Florida's agriculture economy; and protection of the character of the rural areas of Florida. § 163.3177(11)(d)2., Fla. Stat. (2001). While the eligibility criteria and substantive requirements of the RLSA program have been amended several times, the foregoing principles have remained the same. The statute provides an option, not an exception, under the State's growth management laws for local governments to implement innovative planning and development strategies for large, rural parcels. While having many of the attributes of a traditional "transfer of development rights" program, the RLSA planning process provides additional planning and economic incentives as well as flexibility for the local government to implement this program. The program was best summarized by Secretary Pelham at hearing as follows: The RLSA process is an optional planning process which local governments may elect to use in rural and agricultural areas of the state. Essentially it provides incentives to landowners to preserve or conserve environmental and natural resources and agricultural lands by giving them stewardship credits that may be assigned to those lands to be preserved, but which can be used on other lands through a transfer of those credits to the receiving areas. Tr. at 182. The first step in the RLSA planning process is for the local government to "apply to the Department in writing requesting consideration for authorization to designate a [RLSA]." § 163.3177(11)(d)3., Fla. Stat. (2001). Under the original statute, if the Department chose to authorize a local government to designate an RLSA, it would do so by written agreement with the local government. See § 163.3177(11)(d)4. and (5), Fla. Stat. (2001). Because the original statute was a pilot program, the Department could authorize only five local governments to designate RLSAs. See § 163.3177(11)(d)6., Fla. Stat. (2001). To be eligible for designation as an RLSA under this pilot program, a parcel of land had to be larger than 50,000 acres but not over 250,000 acres; it had to be designated as rural or a substantial equivalent on the future land use map (FLUM); and it had to be located outside the municipal and established urban growth boundaries. See § 163.3177(11)(d)6., Fla. Stat. (2001). For this reason, only counties (and not cities) were eligible to participate in the program. Once it received Department authorization to designate an RLSA, the county was to then propose and adopt a plan amendment designating the RLSA. See § 163.3177(11)(d)6., Fla. Stat. (2001). This plan amendment was to be subject to full review under Section 163.3184, Florida Statutes, for a compliance determination. Also, the plan amendment was required to specifically address the following: Criteria for the designation of receiving areas within rural land stewardship areas in which innovative planning and development strategies may be applied. Criteria shall at a minimum provide for the following adequacy of suitable land to accommodate development so as to avoid conflict with environmentally sensitive areas, resources, and habitats; compatibility between and transition from higher density uses to lower intensity rural uses; the establishment of receiving area service boundaries which provide for a separation between receiving areas and other land uses within the rural land stewardship area through limitations on the extension of services; and connection of receiving areas with the rest of the rural land stewardship area using rural design and rural road corridors. Goals, objectives, and policies setting forth the innovative planning and development strategies to be applied within rural land stewardship areas pursuant to the provisions of this section. A process for the implementation of innovative planning and development strategies within the rural land stewardship area, including those described in this subsection and s. 9J-5.006(5)(l), Florida Administrative Code, which provide for a functional mix of land uses and which are applied through the adoption by the local government of zoning and land development regulations applicable to the rural land stewardship area. A process which encourages visioning pursuant to s. 163.3167(11) to ensure that innovative planning and development strategies comply with the provisions of this section. The control of sprawl through the use of innovative strategies and creative land use techniques consistent with the provisions of this subsection and rule 9J-5.006(5)(l), Florida Administrative Code. Once the plan amendment was in place, the county was then to implement it through land development regulations. Under the original statute, the county by ordinance was to "assign to the [RLSA] a certain number of credits, to be known as 'transferable rural land use credits' . . . ." These credits would then be transferred to designated receiving areas "solely for the purpose of implementing innovative planning and development strategies and creative land use planning techniques adopted by the local government pursuant to this section." See § 163.3177(11)(d)8.b., Fla. Stat. (2001). Once transferable rural land use credits were transferred from a parcel, the underlying land uses would be extinguished, the parcel would be limited to agriculture or conservation, and the transfer would be memorialized as a restrictive covenant running with the land. See § 163.3177(11)(d)8.k., Fla. Stat. (2001). The Department was granted the authority to implement this section by rule in the original statute. However, the Department did not adopt rules. No county applied to participate in this pilot program. Amendments to the RLSA Statute The Legislature substantially amended the statute in 2004. See Ch. 2004-372, Laws of Fla. Although the program had no participants as of that time, the Legislature removed the pilot status of the program and the limitation on the number of local governments that may be authorized to designate an RLSA. See § 163.3177(11)(d)1., Fla. Stat. (2004). Although the requirement for a written agreement between the county and the Department was deleted, the requirement for the county's application and Department's authorization prior to the designation of an RLSA remained. See § 163.3177(11)(d)1. and 4., Fla. Stat. (2004). The minimum acreage for an RLSA was reduced to 10,000 acres and the maximum was removed. § 163.3177(11)(d)4., Fla. Stat. (2004). The statute also explicitly recognized that RLSAs could be multi-county. § 163.3177(11)(d)2., Fla. Stat. (2004). In 2005, the Legislature again amended the statute in several respects, one of which was directed to the stewardship credit methodology. See Ch. 2005-290, Laws of Fla. However, the statute still requires that the total amount of credits is to be tied to the "25-year or greater projected population of the rural land stewardship area." Although the statute was amended again in 2006, those amendments have no bearing on the issues in this case. See Ch. 2006-220, Laws of Fla. Designating an RLSA Under the Statute Collier County has been frequently mentioned as a local government with an RLSA program. However, that County's comprehensive plan provisions regarding rural development were not adopted under the RLSA statute; rather, they were adopted by the County in 1999 as conventional plan amendments that were later approved in 2002 by a final order issued by the Administration Commission. Collier County's rural planning program does, however, have some of the same core attributes found in the RLSA program, including the creation of transferable land use credits to enable development in designated receiving areas. The Department closely examined the Collier County program as part of its "Rural Land Stewardship Area Program 2007 Annual Report to the Legislature" (2007 Annual Report). See Joint Exhibit 4. See also § 163.3177(11)(d)8., Fla. Stat. ("[t]he department shall report to the Legislature on an annual basis on the results of implementation of [RLSAs] authorized by the department"). This examination revealed several substantial flaws in the program. First, the Collier County program is extremely complex, with over twenty general attributes that must be examined for every acre of land assigned stewardship credits. This would make it difficult and expensive for small rural counties with limited resources. The Collier County program also assigns the highest stewardship credits to environmentally sensitive lands and appreciably lower values to agricultural land. The result is that development is directed to agricultural areas. For example, eighty-seven percent of the footprint of one receiving area that is currently being developed, known as Ave Maria, was in active agriculture prior to its designation for development. In this respect, the Collier County system is directing development to agricultural lands and not protecting and conserving those lands, which the Department contends contravenes the principles of rural sustainability. Another major concern with the Collier County program is the extent and distribution of receiving areas. The Collier County program does not have any requirements that the receiving area be clustered, thus allowing for the possibility of scattered, sprawling receiving areas throughout eastern Collier County. Also, there appears to be no limit on the footprint of these receiving areas. The original Collier County program envisioned development on only nine to ten percent of the entire area, for a total of approximately 16,800 acres. However, due to the complexity and "flexibility" within the Collier County stewardship credit system, "the maximum development footprint cannot be determined." On September 12, 2006, St. Lucie County adopted plan amendments under the RLSA statute. Later that year, the Department reviewed the amendments and found them to be in compliance. In preparing the 2007 Annual Report, the Department undertook a detailed analysis of the St. Lucie RLSA amendments. Even though the amendments had been previously found to be in compliance, the new analysis revealed several shortcomings in the amendments, including their failure to discuss, analyze, or demonstrate how they further the principles of rural sustainability, a primary focus of the program. Also, the amendments were not supported by an analysis of land use need. Instead of projecting population and need, the RLSA adopted an arbitrary cap of 13,248 dwelling units with "no known planning basis." The St. Lucie RLSA is similar to the Collier County program in two respects: it is very complex, and it places no spacial limits on the footprint of the development area. Due to these shortcomings, the Department has placed little, if any, reliance on the St. Lucie County RLSA amendments as an example of proper planning under the RLSA statute. There is no evidence that any development has occurred under the St. Lucie program, and its most recent Evaluation and Appraisal Report dated October 2008 indicated that none may ever occur. In 2007, Highlands and Osceola Counties both applied for and were granted authorization by the Department to designate RLSAs. However, both counties later notified the Department that they would no longer pursue the RLSAs, and the authorizations were withdrawn by the Department. The Rule Development Process In early 2007, the Department became aware of assertions by some landowners that the RLSA program provides for unlimited development within a stewardship area; that RLSA plan amendments were not subject to the growth management provisions in Chapter 163, Florida Statutes; and that RLSAs were not subject to a needs analysis, as required by the law. At the same time, the Department received numerous inquiries from large landowners and/or their representatives regarding RLSA proposals, some as large as 750,000 acres, and for two "new towns" with 100,000 and 60,000 dwelling units, respectively. It also became aware of concerns and criticisms leveled against the one adopted RLSA program in St. Lucie County and rural planning efforts in Collier County. The main criticism was that the system being used for RLSA planning was too complex, which resulted in an expensive, consultant- intensive process that lacked transparency and was largely incomprehensible. Based on the above concerns and criticisms, the Department began gathering information in early 2007 in preparation for rulemaking. On July 19, 2007, it conducted its first workshop. Two other workshops were held, and the first draft of proposed rule 9J-5.026 was issued in January 2008. That proposed rule set forth the minimum substantive requirements for RLSA planning. In September 2008, the Department issued its first draft of proposed rule 9J-11.023, which sets forth the procedural requirements for a local government to seek authorization from the Department to designate an RLSA. After receiving comments from interested parties, the Department noticed the rules for adoption and conducted a rule adoption hearing. On January 7, 2009, Petitioners filed a Petition challenging most of the provisions in the proposed rules. See DOAH Case No. 09-0048RP. Based upon that challenge, which raised new issues not previously brought to the attention of the Department, the Department withdrew the rules and made substantial revisions to address these concerns. This rendered moot Petitioners' earlier challenge. After the revised rules were noticed for adoption, Petitioners filed their Petition challenging numerous provisions within the proposed rules as well as one existing rule. The Objections As summarized in their Proposed Final Order, Petitioners contend (a) that proposed rules 9J-11.023(2), (4), and (5) are invalid because they exceed the Department's grant of rulemaking authority;4 (b) that proposed rules 9J-5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and 19. enlarge, modify, or contravene the specific provisions of law implemented; (c) that proposed rule 9J-5.026(3) is vague and fails to establish adequate standards for agency decisions; (d) that proposed rule 9J-5.026(9)(a)18. is arbitrary; and (e) that existing Rule 9J-5.003(80) contravenes the specific provisions of law implemented. The remaining allegations have been voluntarily dismissed. a. Does proposed rule 9J-11.023 exceed the grant of legislative authority? Petitioners first contend that subsections (2) and (4) in their entirety and the words "If authorized to proceed" in the first sentence of subsection (5) of proposed rule 9J-11.023 are an invalid exercise of delegated legislative authority because they exceed the Department's specific grant of legislative authority. The challenged subsections of the proposed rule read as follows: 9J-11.023 Procedure for the Designation of a Rural Land Stewardship Area. * * * (2) Pre-Notification Actions. Prior to giving official notification of intent to designate a RLSA to the Department, the county(ies) shall conduct at least one noticed public workshop to discuss and evaluate the appropriateness of establishing a RLSA. The county(ies) shall invite the Department of Community Affairs, Department of Agricultural and Consumer Affairs, Department of Environmental Protection, Department of Transportation, Florida Fish and Wildlife Conservation Commission, affected regional planning council(s), and affected water management district(s) (collectively referred to as the "RLSA Interagency Technical Advisory Team") to participate in the workshop. Potentially affected landowners and other interested parties shall be given notice and invited to participate in the workshop. The workshop shall address: the statutory process for designating a RLSA; the planning issues that are likely to arise; and the technical assistance that will be available from state and regional agencies if the county(ies) proceed to designate a RLSA. The county(ies) shall provide opportunities for broad public participation in the RLSA process, which may include a series of public meetings or workshops. The county(ies), in coordination with the affected landowners, shall host a site visit of the RLSA for the RLSA Interagency Technical Advisory Team in conjunction with the workshop or after the notification of intent to designate pursuant to paragraph (4)(b). * * * Review of Notification of Intent to Designate. The Department will provide members of the RLSA Interagency Technical Advisory Team with a copy of the notification of intent to designate within five days after receipt of the notification. If a site visit was not made prior to the notification of intent to designate, the Department will contact the county(ies) within ten days after receipt of the notification of intent to arrange a site visit of the proposed RLSA and surrounding lands. The county(ies) shall ensure proper coordination with the affected landowners. The Department will coordinate the scheduling of the site visit with the members of the RLSA Interagency Technical Advisory Team and request their participation in the site visit. Members of the RLSA Interagency Technical Advisory Team shall be asked to provide the Department oral and/or written comments on the proposed RLSA within 30 days of the receipt of the notification of intent to designate or the site visit, if it occurs after the notification. The Department may also request meetings with the members of the RLSA Interagency Technical Advisory Team to discuss and evaluate the notification and site visit. The Department may also request a conference with the county's(ies') staff(s) to discuss issues and questions that have arisen as a result of the site visit, comments from members of the Interagency Technical Advisory Team and other stakeholders, and the Department's evaluation of the RLSA proposal. Not later than 60 days following the receipt of the notification of intent to designate or the site visit, whichever is later, the Department shall issue a written notification to the county(ies). The Department's notification shall authorize the county(ies) to proceed with a plan amendment to designate the RLSA or inform the county(ies) of the Department's decision not to authorize. The decision shall be based on the information contained in or gained from the notification, site visit, other agency comments, and other information received. The Department shall authorize the county(ies) to proceed if it determines that the proposed RLSA meets the threshold eligibility requirements of subsection 9J-5.026(4), F.A.C. and that there is a reasonable likelihood that the RLSA will further the principles of rural sustainability. If the Department decides to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the notification will set forth the facts on which the authorization is based, and may include recommendations to the county(ies) regarding the RLSA. The notification will not guarantee that a comprehensive plan amendment(s) to designate a RLSA will be found in compliance by the Department. It will only constitute the Department's authorization to designate a RLSA if the necessary comprehensive plan amendment(s) are adopted and found in compliance pursuant to Section 163.3184, F.S. If the Department decides not to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the agency's notification will explain the reasons for the decision. Amendment to the Comprehensive Plan: If authorized to proceed, the county(ies) may prepare and process a plan amendment(s) that will be reviewed by the Department pursuant to Section 163.3184, F.S. The county(ies) may, in preparing the plan amendment(s), establish a local visioning process to facilitate the development of a RLSA plan amendment. The Department encourages the county(ies) to seek and utilize technical assistance from the members of the RLSA Interagency Technical Advisory Team in preparing a RLSA plan amendment. 33. Sections 120.52(8)(b) and 120.54(3)(a)1., Florida Statutes, require that the agency list in the rulemaking notice the purported rulemaking authority for the proposed rule. To comply with this requirement, the Department's rulemaking notice cites Sections 163.3177(9) and (11)(h), Florida Statutes, as the specific authority for adopting the rule and Section 163.3177(11)(d)1., Florida Statutes, as the law being implemented. In its Proposed Final Order, the Department relies on Section 163.3177(11)(h) as the specific statutory authority for rulemaking. It provides that the Department "may adopt rules necessary to implement the provisions of [subsection 163.3177(11)]," including the RLSA provisions found in Section 163.3177(11)(d). On the other hand, the law being implemented is quite lengthy and reads as follows: (11)(d)1. The department, in cooperation with the Department of Agriculture and Consumer Services, the Department of Environmental Protection, water management districts, and regional planning councils, shall provide assistance to local governments in the implementation of this paragraph and rule 9J-5.006(5)(l), Florida Administrative Code. Implementation of those provisions shall include a process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element as predominately agriculture, rural, open, open-rural, or a substantively equivalent land use, as a rural land stewardship area within which planning and economic incentives are applied to encourage the implementation of innovative and flexible planning techniques, including those contained herein and in rule 9J- 5.006(5)(l), Florida Administrative Code. Assistance may include, but is not limited to: Assistance from the Department of Environmental Protection and water management districts in creating the geographic information systems land cover database and aerial photogrammetry needed to prepare for a [RLSA]; Support for local government implementation of rural land stewardship concepts by providing information and assistance to local governments regarding land acquisition and assistance to local governments regarding land acquisition programs that may be used by the local government programs that may be used by the local government or landowners to leverage the protection of greater acreage and maximize the effectiveness of rural land stewardship areas; and Expansion of the role of the Department of Community Affairs as a resource agency to facilitate establishment of [RLSAs] in smaller rural counties that do not have the staff or planning budgets to create a [RLSA]. Proposed rule 9J-11.023 describes in detail the process by which a local government is to request Department authorization to designate a RLSA. At issue here are provisions in subsections (2), (4), and (5) of the rule that require a local government wishing to designate an RLSA to conduct a public workshop; cover particular topics during the workshop; host a site visit with designated agencies; and based on the information gathered from this process to then allow the Department, in its discretion, to either authorize or not authorize the local government to begin to prepare and process an RLSA amendment. The latter decision is based on whether the local government has shown "a reasonable likelihood that the RLSA will further the principles of rural sustainability." Petitioners contend that there is no specific grant of rulemaking authority that authorizes the Department to mandate these procedures in the rule or to prevent a local government from proposing and processing an RLSA plan amendment. Instead, they contend that the enabling statute only allows the Department to promulgate rules that are "necessary" to implement the RLSA program, those being a requirement that the county provide notice to the Department that it intends to propose a RLSA plan amendment and a description of the subsequent review process by the Department to determine whether the amendment is in compliance. Section 163.3177(11)(d)1., Florida Statutes, authorizes the Department to provide "assistance to local governments in the implementation of this paragraph and rule 9J- 5.006(5)(l)." (The cited rule, among other things, encourages "innovative and flexible planning and development strategies" that allow conversion of rural and agricultural lands to other uses.) The statute also includes specific authority to establish a "process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element (FLUE] as predominately agricultural, rural, open, open-rural, or a substantively equivalent land use, as a [RLSA] . . . ." The rule accomplishes this purpose by requiring state agency technical assistance, establishing the process for a workshop and site visit, requiring that the county's notification describe the basis for the designation, requiring broad public participation, and assuring, by approval or disapproval of the county's preliminary proposal, that the proposed RLSA will promote the principles of rural sustainability. Notably, had the Legislature intended this authorization process to be the same as the existing compliance review process for conventional plan amendments, there would be no need for this statutory language. The proposed rule does not exceed the Department's grant of rulemaking authority. b. Do certain provisions within proposed rule 9J-5.026(7) and (9) enlarge, modify, or contravene the law implemented? Petitioners further contend that proposed rules 9J- 5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and enlarge, modify, or contravene the specific provisions of law implemented. The challenged rules read as follows: 9J-5.026 Rural Land Stewardship Area (RLSA) * * * Data and Analysis Requirements. * * * Population Projections and Analysis of Land Use Need. Population projections and analysis of land use need shall be prepared in accordance with Rule 9J-5.006, F.A.C., with the following modifications: The amount and extent of allowable development in the RLSA must be based on the 25-year or greater projected population of the RLSA; the anticipated effect of the proposed RLSA must receiving areas, including any committed catalyst projects, infrastructure improvements, or other projects that would attract and support development; the furtherance of the statutory principles of rural sustainability; and the goals, objectives, and policies of the RLSA plan amendment. * * * 4. Land development and other conversion threats whereby rural resources under threat require more incentives via stewardship credits and less threatened resources require lesser incentives. This includes the future threat of low-density sprawl on lands within and surrounding Eligible Receiving Areas; and * * * 6. Values shall be assigned to all of the land in the RLSA. The highest values shall be assigned to the most environmentally valuable land, and to open space and agricultural land where the retention of such lands is a priority. The assignment of values shall be submitted with the RLSA plan amendment as part of the supporting data and analysis. * * * Stewardship Credit System Criteria. (a) Each credit shall represent a defined number of residential units or a defined amount of non-residential square footage. The credit transferee may decide whether to use the credit for a residential or non- residential use in accordance with the land use standards established for the Designated Receiving Area. * * * Goals, Objectives, Policies, and Map. * * * (a) The goals, objectives, and policies shall include the following: * * * 3. Identification of the innovative planning and development strategies to be used within the RLSA, and a process for implementing the strategies, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. The process shall include provision for the Department's review of a proposed land development regulation to designate a receiving area for consistency with the RLSA plan amendment. * * * 6. A requirement that Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values based on the land values analysis conducted pursuant to paragraph (7)(c). * * * Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RLSA. Provisions to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability. * * * The grant of authority for this rule is cited as Sections 163.3177(9) and (11)(h), Florida Statutes, while Sections 163.3177(2), (3), (6)(a), (8), (10)(e), (11)(a), (b), and (d)1., 2., 4., 5., and 6., Florida Statutes, are cited as the laws being implemented. Subsection (2) of the law being implemented provides that "[c]oordination of the several elements of the local comprehensive plan shall be a major objective of the planning process"; subsection (3) is a lengthy provision requiring that a comprehensive plan include a capital improvements element; paragraph (6)(a) describes in detail the matters that must be contained in the FLUE; subsection (8) requires that all elements of the comprehensive plan be based on data appropriate to the element involved; paragraph (10)(e) generally provides that support data and analysis shall not be subject to the compliance review process, but they must be based on appropriate data; paragraph (11)(a) describes the Legislature's recognition of using innovative planning and development strategies; paragraph (11)(b) expresses the intent of the Legislature to allow the conversion of rural lands to other uses, where appropriate, including urban villages, new towns, satellite communities, area-based allocations, clustering, and open space provisions, mixed-use development, and sector planning; and subparagraphs (11)(d)1., 2., 4., 5., and 6. describe the statutory process for creating an RLSA. Subsection (7) of the proposed rule sets forth the data and analysis requirements that apply to all RLSA plan amendments, including data and analysis of existing conditions (subparagraphs (7)(a)1. through 10.); population projections and analysis of land use (paragraph (7)(b)); and a land values analysis (subparagraphs (7)(c)1. through 6.). A land use needs analysis is an integral part of the planning process. Paragraph (7)(b) requires that an RLSA amendment be supported by population projections and an analysis of land use need such that the amount and extent of allowable development must be based on the 25-year or greater projected population of the RLSA, other items, and the anticipated effect of proposed RLSA receiving areas. Petitioners contend that this language contravenes Section 163.3177(11)(d)6., Florida Statutes, amended in 2005, which provides in part that the total amount of development "must enable the realization of the long- term vision and goals for the 25-year or greater projected population of the [RLSA], which may take into consideration the anticipated effect of the proposed receiving areas." See Ch. 2005-290, Laws of Fla. Paragraph (7)(b) does not contravene the terms of the statute. As expressed in the law being implemented, the rule directs that the need analysis shall be based upon, among other things, "the anticipated effect of the proposed RLSA receiving areas " As a part of the data and analysis to be supplied, paragraph (7)(c) requires that an RLSA amendment be supported by a land values analysis that considers six components described in subparagraphs 1. through 6. This in turn requires a comprehensive analysis of rural resources that exist within the RLSA. Subparagraph 4. requires that the analysis include the development threats to rural resources and that resources under threat of conversion receive more incentives from stewardship credits than resources under less of a threat. Petitioners contend that the rule contravenes Section 163.3177(11)(d)6.j., Florida Statutes, because it requires a greater value to be assigned to resources under threat of conversion and would result in other rural and natural and agricultural resources which may have a higher intrinsic value being assigned fewer credits. Specifically, the cited statute requires that "the highest number of credits per acre" should be "assigned to the most environmentally valuable land, or, in locations where the retention of open space and agricultural land is a priority, to such lands." The purpose of the rule is straightforward: to protect those resources that are under the greatest threat and those that are most susceptible to harm over time through land development or other changes, including urban sprawl. Contrary to Petitioners' assertion, the overall analysis does in fact consider all forms of rural resources in determining how the credits will be assigned. The rule implements the statutory directive of attaining the principles of rural sustainability. Subparagraph (7)(c)6. requires, among other things, that the local government submit as a part of the data and analysis supporting the plan amendment "the assignment of values" of all lands in the RLSA. Petitioners contend that assigning values at the time of the amendment "locks in these values" and would require a subsequent plan amendment in contravention of Section 163.3177(11)(d)6., Florida Statutes, which Petitioners argue contemplates the creation of credits after the adoption of the plan amendment. At hearing, however, the Department explained that because conditions will obviously change over time, the land values analysis will be periodically updated and can be changed without a new plan amendment. In their Proposed Final Order, Petitioners concede that given this interpretation of the rule, it "would not be an invalid exercise of delegated legislative authority." See Petitioners' Proposed Final Order, par. 73. Paragraph (8)(a) of the proposed rule requires each stewardship credit to represent either a defined number of residential units or non-residential square footage. Once the credits are created in sending areas, they can be transferred to designated receiving areas to be used to enable development that is consistent with the RLSA goals, objectives, and policies. Petitioners contend that the rule will prohibit mixed-use development in contravention of Section 163.3177(11)(d)4.c., Florida Statutes, which requires that the RLSA goals, policies, and objective provide for a "functional mix of land uses." There is no prohibition of a mix of land uses. In fact, the opposite is true. As clarified by a Department witness, "a mix is essentially required, as you can see from [sub]paragraph (9)(a)17., which describes that a mix of use must be addressed." Tr. at 273. The rule does not contravene the statute. Subsection (9) of the proposed rule generally requires that the RLSA plan amendment contain goals, objectives, policies, and a map. Subparagraphs (9)(a)1. through 21. require that the goals, objectives, and policies identify the innovative planning and development strategies to be used in the RLSA process, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. Petitioners allege that subparagraphs 3., 6., 18., and enlarge, modify, or contravene the law implemented. Subparagraph 3. requires "implementing plan amendments" because the Department recognized the fact that the RLSA planning process will consume years or even decades and will require implementing plan amendments to accomplish its purpose. This is especially true here as the RLSA process involves the development of large tracts of land (as much as 100,000 acres or more) that will take years or decades to fully implement and build out. At a minimum, under current law, the "implementing plan amendments" will include a capital improvements element annual update; water supply planning, and the designation of new towns. Except for the requirement that an implementing plan amendment designate a new town pursuant to existing Rule 9J-5.003(80), Petitioners agree that the proposed rule is valid. Because the cited existing rule has been determined to be valid, Petitioners' contention is rejected. See Findings 62-65, infra. Subparagraph 6. provides that the goals, policies, and objectives shall contain "a requirement that the Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values on the land values analysis conducted pursuant to paragraph (7)(c)." Petitioners contend that this provision limits the flexibility of local governments to determine the best location for Eligible Receiving Areas and therefore contravenes the provisions in various parts of Section 163.3177, Florida Statutes, that emphasize flexibility. The rule implements the principles of rural sustainability contained in Section 163.3177(11)(d)2., Florida Statutes. Only by directing development to land with the lowest environmental, agricultural, and rural resource value will an RLSA protect ecosystems, habitat, natural resources, and the agricultural economy. The rule does not contravene this statute. Subparagraph 18. requires an RLSA plan amendment to include policies for "new towns," including a requirement that a new town be designated on the FLUM. Petitioners contend that the requirement to designate a new town on the FLUM contravenes Section 163.3177(11)(4)(d)4., Florida Statutes, which provides for the implementation of the innovative planning and development strategies included in existing Rule 9J-5.006(5)(l) through zoning and land development regulations. At hearing, Petitioners narrowed their argument to this one feature in the rule. Because the Department may lawfully require that new towns be designated on the FLUM, subparagraph 18. is consistent with the statute implemented. See Findings 62-65, infra. Subparagraph 19. requires that RLSA plan amendments contain goals, objectives, and policies "to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability." Petitioners contend this provision contravenes Section 163.3177(11)(d)6., Florida Statutes, because it "impinges on existing land use rights which is contrary to one of the statutory principles of rural sustainability, namely the 'restoration and maintenance of the economic value associated with rural lands.'" The rule, however, furthers the principles of rural sustainability, as required by Section 163.3177(11)(d)1., Florida Statutes, since it requires that all lands within an RLSA, whether or not in a Designated Receiving Area, be developed in a manner that furthers those principles. It does not contravene the cited statute. Petitioners also contend that subparagraph 19. contravenes Section 163.3161(9), Florida Statutes, which requires, among other things, that all programs be applied "with sensitivity for private property rights and not be unduly restrictive." Petitioners surmise that the rule may operate to displace underlying density within the RSLA regardless of the use of the RLSA credit system. However, the rule does not displace any underlying density; it only requires that underlying rights be exercised consistent with the RLSA. More specifically, existing densities may be used in any manner that furthers the principles without displacing any of those densities. The rule does not contravene either statute. Is proposed rule 9J-5.026(3) vague and does it have inadequate standards for agency decisions? Petitioners next contend that subsection (3) of proposed rule 9J-5.026, and specifically certain words within the definition of the term "greenbelt," are vague and fail to establish adequate standards for agency decisions. That provision reads as follows: 9J-5.026 Rural Land Stewardship Area (RSLA) * * * (3) Definitions * * * (d) "Greenbelt" means a border of permanently undeveloped land sufficient in size to effectively preclude the expansion of urban development into the surrounding rural lands and to provide an effective buffer to protect the surrounding rural resources from development impacts. A greenbelt is an undeveloped area that surrounds an urban area, a new town, or other urban development and is meant to separate the urban developed area from the surrounding area to provide a border that protects surrounding rural lands from urban development. Petitioners contend that the use of the adjectives "sufficient," "effectively," and "effective" to describe the greenbelt buffer are vague and lack standards to guide agency determinations. In common usage, the word "sufficient" means that the greenbelt is sufficient in size to accomplish its purpose of precluding the expansion of urban development into the surrounding rural lands. Similarly, the word "effectively" means that the use or creation of a buffer to protect urban encroachment on rural lands will be accomplished in an effective manner. Likewise, the word "effective" simply means that the greenbelt achieves the purpose of creating a buffer. These phrases are easily understood by persons of ordinary intelligence, particularly when read in context with other provisions of the rule. See, e.g., Cole Vision Corp., et al. v. Dept. of Bus. and Prof. Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997). Petitioners contend, however, that the rule fails to explicitly include the standard that site-specific data would be considered in determining the "sufficiency" of a buffer. However, this level of detail is not needed since site-specific information is typically considered and applied by the local government and Department through the planning process and might include, for example, the nature of the urban area, the potential impacts if the urban area is extended, the nature of the surrounding land, and other similar factors. The rule is not so vague or lacks sufficient standards as to be invalid. Is proposed rule 9J-5.026(9)(a)18. arbitrary? Petitioners further contend that subparagraph (9)(a)18. of proposed rule 9J-5.026 is arbitrary. That rule reads as follows: 18. Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RSLA. As noted earlier, this rule sets forth the requirements for policies in the RLSA plan amendment that are applicable to new towns. Petitioners contend that the rule is arbitrary because it "selectively emphasizes" a new town as only one of several innovative and flexible planning strategies set forth in existing Rule 9J-5.006(5)(l). To be arbitrary, a rule must not be supported by logic or the necessary facts. See § 120.52(8)(e), Fla. Stat. Here, the more persuasive evidence shows that new towns are much larger development types; they are more intense than other development forms; and they will likely generate greater impacts. In an RLSA, they take on even more significance since the planning goal is to further the principles of rural sustainability. Collectively, these factors form a sufficient basis and rationale for giving new towns different treatment than other development forms that are smaller, have fewer uses, are less intense, and are more likely to have lesser impacts. The proposed rule is not arbitrary. e. Does existing Rule 9J-5.003(80) contravene the specific provisions of law implemented? Finally, Petitioners have challenged existing Rule 9J- 5.003(80), which became effective in 1994, on the ground that it contravenes the specific provisions of law implemented. That rule defines the term "new town" as follows: (80) "New town" means a new urban activity center designated on the future land use map and located within a rural area, distinct and geographically separated from existing urban areas and other new towns. A new town is of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban area designation. New towns include basic economic activities; all major land use categories; and a centrally provided full range of public facilities and services. New towns are based on a master development plan. The specific authority for the rule, when adopted, was Section 163.3177(9) and (10), while the law being implemented was identified as Sections 163.3177 and 163.3178, Florida Statutes. Because Section 163.3178 involves coastal management, and a new town would probably not be located in a coastal zone, it has marginal relevance to this proceeding. The Department relies principally on Section 163.3177(6)(a), Florida Statutes, which requires, among other things, that "various categories of land use shall be shown on a land use map or map series."6 The existing definition provides, in part, that a new town will include "all major land use categories, with the possible exception of agricultural and industrial." Because they include numerous land use categories, new towns are by definition a mixed-use land use category. See Fla. Admin. Code 9J-5.006(4)(c). Mixed-use land use categories must be designated on the FLUM. See § 163.3177(6)(a), Fla. Stat.("The future land use plan may designate areas for future planned development use involving combinations of types of uses"). As noted above, a new town is recognized in existing Rule 9J-5.006(5)(l) as an innovative and flexible planning option. Because the Legislature referenced this rule provision with approval four times in the RLSA statute, it must be presumed that the Legislature was expressing approval of the existing definition with the mapping requirement. See §§ 163.3177(11)(d)1. (two separate references); 163.3177(11)(d)4.c.; and 163.3177(11)(d)4.e. The rule does not contravene the statute being implemented.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background The parties Respondent, Franklin County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter authorizes the County, under certain conditions, to adopt what is known as a small scale development amendment to its comprehensive plan. At issue in this case is a small scale development amendment adopted by the County on October 3, 1996. Petitioner, St. George Plantation Owners Association, Inc. (petitioner), is a not-for-profit corporation organized for the protection and management of the Plantation Area of St. George Island. The island lies just south of Apalachicola, Florida in the Gulf of Mexico. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus it has standing to bring this action. Intervenors, Ben Johnson and Coastal Development Consultants, Inc., are the owners of approximately 58 acres on St. George Island known as the Resort Village Property. The property is adjacent to the St. George Island Airport. A portion of intervenors' property, 9.6 acres, is the subject of the plan amendment being challenged. The nature of the dispute Intervenors' property is subject to a 1977 Development of Regional Impact (DRI) order adopted by the County in 1977. The order has been amended from time to time. Among other things, the order provides conceptual approval for the development of "one or more high quality resort hotels or motels, together with such affiliated uses as may be appropriate or desirable, such as gift and tourist shops, restaurants, recreational activities and similar activities." Intervenors desire to develop the Resort Property Village consistent with the 1977 DRI order. The first part of the project consists of approximately 9.6 acres which they have designated as Phase I. The land is located within the Plantation Area of St. George Island and has a land use designation of residential. In June 1995, intervenors submitted detailed site plans for Phase I to the County. On August 1, 1995, the County conducted a public hearing to review the proposed site plans and specifications for Phase I. It adopted a motion which directed its staff "to review and perfect the plans presented, so that the Board can consider the final approval of the plan." It also directed its staff to provide advice concerning the procedure to be followed. After consulting with the Department of Community Affairs (DCA), which recommended that the comprehensive plan be amended to change the land use to accommodate the commercial uses, the staff recommended that the County adopt a small scale development amendment by changing the designation on its Future Land Use Map (FLUM) for 9.6 acres from residential to commercial. By a 3-2 vote, on October 3, 1996, the County adopted Ordinance No. 96- 22 which changed the designation for the 9.6 acres on the FLUM from residential to commercial. Because the amendment affected ten or fewer acres, the County opted to make the change with a small scale development amendment under Section 163.3187(1)(c), Florida Statutes. According to the site plan which accompanied a Notification of Proposed Change filed with the County on May 26, 1996, the Phase I development includes four hotels, 10,250 square feet of commercial space, 300 square feet of retail space, a beach club, a 325 seat conference center, various support and recreational facilities, and a wastewater treatment plant. The Phase I site plan, however, does not include the three subsurface absorption beds which are required to service the effluent from the wastewater treatment plant. If the absorption beds were included, they would increase the size of Phase I from 9.6 to approximately 14.6 acres. In a petition challenging the adoption of the small scale amendment, petitioner contends that, if the absorption beds are properly included in the land use amendment, the land use area would exceed ten acres and thus would require a full-scale land use amendment subject to DCA review. In response, the County and intervenors have contended that, under the current plan, there is no need to change the land use where the wastewater treatment facility will be located since such facilities are allowed in any land use category. As such, they contend there is no requirement to include such property in Ordinance 96- 22. The Wastewater Treatment Facility The proposed development will be served by a wastewater treatment facility. The Department of Environmental Protection (DEP) has issued a permit to Resort Village Utility, Inc., a utility certified by the Florida Public Service Commission to serve the entire 58-acre Resort Village property. The permit provides that the plant can accommodate up to, but not exceeding, 90,000 gallons of treated effluent per day. The facility consists of the wastewater treatment plant, lines to the plant from the development which carry the untreated wastewater to the plant, and lines from the plant to three sub-surface absorption beds where the treated effluent is disbursed. The absorption beds required for the Phase I project wastewater treatment facility will not serve any residential customers. Rather, they will only serve Phase I and any other subsequent phases of Resort Village development, which is a commercial development. Construction must begin on the wastewater treatment plant once the flow of waste effluent reaches 7,500 gallons per day, or if the wastewater from restaurants reaches 5,000 gallons per day. The Phase I project is required to use this facility once the rate of flow of waste effluent exceeds 10,000 gallons per day. Until these thresholds are met, the project will rely temporarily on aerobic systems to handle and treat waste effluent. Under the permit issued by the DEP, the wastewater treatment facility required for Phase I consists of both a wastewater treatment plant and three absorption beds. Through expert testimony of a DEP professional engineer, it was established that the absorption beds were integral to the design and successful operation of the facility. The County and intervenors acknowledge this fact. Therefore, the "use" that is the subject of the amendment is the entire wastewater treatment facility, including the absorption beds, and "involves" some 14.6 acres. Since the plan amendment does not involve "10 or fewer acres," as required by statute, the amendment cannot qualify as a small scale development amendment and is thus not in compliance. In making these findings, the undersigned has considered a contention by the County that Policy 2.3 of the comprehensive plan sanctions its action. That policy reads as follows: Public utilities needed to provide essential service to existing and future land uses in Franklin County shall be permitted in all the land use classifications established by this plan. Public utilities includes all utilities (gas, water, sewer, electrical, telephone, etc.) whether publicly or privately owned. At hearing, the County planner construed the term "public utilities" as being "minor (utility) infrastructure," including wastewater treatment plants not exceeding 100,000 gallons per day. Relying on this provision, the County reasons that the proposed facility is "minor" infrastructure, since it will only have 90,000 gallons per day capacity, and thus it can be placed in a residential land use category. They go on to argue that, since no change in land use classification is needed to permit the facility, it is unnecessary to include the facility in the plan amendment. According to the County, however, the plant (but not the beds) was included only because it was easier to draw a map for the entire 9.6 acres rather than excise that portion of the land where the plant will be located. Under the same theory, the County has placed at least two existing wastewater treatment facilities in the residential land use category. Those facilities, however, predate the adoption of the comprehensive plan in April 1991, and both serve residential, as opposed to commercial, developments. Moreover, the County admitted that it lacks any "clear" policy about the meaning of "public utilities," and it has never adopted a land development regulation to implement the interpretation given at hearing. The County's position is contrary to conventional land use planning practices which define "utilities" as infrastructure such as water or electrical lines that transport a service and would, by their very nature, be required to cross different land uses. Conversely, conventional land use planning practices define "facilities" as infrastructure that performs a service, such as power plants or pumping stations. This infrastructure does not cross different land use categories. In this case, the absorption beds perform a service by further processing and treating waste effluent from Phase I. Therefore, conventional land use planning practices would logically call for the plant and related absorption beds to be classified as "public facilities" under Policy 2.2(i) of the County's comprehensive plan. That policy defines the term as including "water and sewer facilities." The classification would also be compatible with the definition of "public facilities" found in DCA Rule 9J-5.003(105), Florida Administrative Code. Finally, the County and intervenors point out that the facility may not be constructed for many years, depending on the rate and amount of development that occurs in Phase I. Thus, they contend that there is no immediate requirement for the County to change the future land use designation of the property where the absorption beds will be located. But given the fact that the beds and plant are a single, interrelated system, the County cannot choose to change the land use designation for a portion of the facility while ignoring the remainder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a Final Order determining Ordinance No. 96-22 adopted by Franklin County on October 3, 1996, as not in compliance for failing to meet the criteria of Section 163.3187(1)(c), Florida Statutes. DONE AND ENTERED this 13th day of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Richard W. Moore, Esquire Post Office Drawer 1759 Tallahassee, Florida 32302-1759 Alfred O. Shuler, Esquire Post Office Drawer 850 Apalachicola, Florida 32320-850 L. Lee Williams, Esquire Post Office Box 1169 Tallahassee, Florida 32302-1169 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Gregory C. Smith, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
