Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA11-GM-072 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and comet copies have been furnished to the persons listed below in the manner described, on this.2 ¢ day of April, 2011. U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Daniel Cox, Esq. Attorney for Roger Bybee PO Box CC Carrabelle, FL 32322-1229 Hand Delivery Matthew Davis Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399 Paula Ford tt Agency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Daniel Hartman, Esq. Attorney for the City of Carrabelle Hartman Law Firm, P.A. PO Box 10910 Tallahassee, FL 32302-2910 Robert Aitkens, Esq. Attorney for Live Oak Ventures, LLC 1827 Powers Ferry Road Building One, Suite 100 Atlanta, GA 30339
The Issue The issue in this case is whether the subject plan amendment, which changes the future land use designations of parcels owned by each of the Petitioners, is not in compliance for the reasons set forth in the petitions.
Findings Of Fact The Parties Each Petitioner submitted oral or written objections during the review and adoption proceedings culminating in the adoption of the plan amendment at issue. Petitioner Wilson owns about 2.5 acres on the north 1/ side of State Route 524 and east side of Westminster Drive. The Wilson parcel, which is vacant, contains about 300 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. Petitioner Tompkins owns about 3.5 acres on the north side of State Route 524 and west side of Westminster Drive. The Tompkins parcel, which is vacant, contains about 600 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. The Wilson and Tompkins parcels lie between State Route 524 and Cocoa North, which is a large residential subdivision. The existing land uses near the area, which is a growth center in Cocoa, are largely low density residential, and there remains considerable vacant land. There are no commercial uses within the Cocoa North subdivision. The only access to Cocoa North is by way of State Route 524, using Westminster Drive or one of two other roads. The nearest convenience store is about two-thirds of a mile east of Westminster Drive on State Route 524. An I-95 interchange lies about 1.8 miles to the west of Westminster Drive on State Route 524. The nearest property to the west designated Commercial is at the northwest corner of the Tenzel property, which is discussed below. The Commercial parcel on the Tenzel property is about one and one-quarter miles from Westminster Drive. Petitioner Messiah Church owns about 2.3 acres on the east side of U.S. Route 1 about 300 feet north of Michigan Avenue. Petitioner Fountain owns about 0.72 acre on the east side of U.S. 1 about 1200 feet north of the Messiah Church's property. The Messiah Church parcel contains a church. The Fountain parcel is vacant. The Messiah Church and Fountain parcels lie between U.S. Route 1 and a wide strip of existing low density residential uses bordered on the east by the Indian River. The narrower strip containing the Messiah Church and Fountain parcels is located in an underutilized area characterized by a mix of existing commercial uses. For example, a flea market occupies the west side of U.S. Route 1 across from the Messiah Church parcel. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent the City of Cocoa (Cocoa) is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. History of Cocoa Comprehensive Plan Cocoa adopted its comprehensive plan and transmitted it to DCA on October 4, 1988. DCA issued a notice of intent to find the plan in compliance. A petition was filed challenging the determination of compliance and requesting a hearing under Section 163.3184(9), Florida Statutes. Following an administrative hearing, an order recommended that DCA forward the case to the Administration Commission for entry of a final order determining the plan not to be in compliance. The parties then negotiated a settlement agreement. Pursuant to the agreement, the Administration Commission entered a final order and later an amended final order determining the plan not to be in compliance and identifying the remedial amendments necessary to attain compliance. The designations challenged by Petitioners are part of a set of plan amendments consisting of the remedial amendments ordered by the Administration Commission, amendments required to settle a federal court action in which Cocoa was a defendant, and amendments having nothing to do with either legal proceeding. The challenged designations fall in the last category. The Future Land Use Map (FLUM) in the original plan adopted in 1988 designated as Commercial a strip of land containing the Wilson and Tompkins parcels. The entire strip runs 2700 feet along State Route 524, which is a two lane undivided minor arterial, and extends about 250 feet deep. The Wilson and Tompkins parcels constitute about 40% of the strip and are located at its extreme western end. State Route 524 operates at a level of service C and is projected to remain at this level of service though 1997. The FLUM designated as High Density Residential a strip of land containing the Messiah Church and Fountain parcels. The entire strip, which is generally quite shallow, runs about 3400 feet along U.S. Route 1, which is a four lane divided principal arterial. The Messiah Church and Fountain parcels constitute about 20% of the strip and are located in its northern half. U.S. Route 1 is operating at level of service D and is projected to be operating at level of service E by 1992 and level of service F by 1997. Transmittal and Adoption Process On October 30, 1989, the Planning and Zoning Board, which acts as the local land planning agency (LPA), conducted a public meeting at which it discussed at length new public participation procedures that it was considering adopting. Specific provisions were prepared following the meeting, circulated at the next LPA meeting on November 13, discussed, revised somewhat, and finally adopted. On November 21, 1989, the LPA met to discuss remedial amendments necessary to comply with the requirements of the Amended Final Order of the Administration Commission. Pursuant to a contract with Cocoa, the East Central Florida Regional Planning Council (Regional Planning Council) had prepared a draft set of amendments for review by the LPA. At the beginning of the November 21 meeting, the city attorney stated that the purpose of the meeting was to obtain information and comments from the public. He explained that he and city staff recommended that the LPA defer any formal action on the proposed amendments until their next scheduled meeting on November 27. A representative of the Regional Planning Council was in attendance to assist in the discussion. The proposed amendments drafted by the Regional Planning Council did not change the designations of the parcels owned by any of the Petitioners. In fact, according to the minutes, none of the four parcels nor either of the two strips containing the parcels was even mentioned at the November 21 meeting. Following a very short meeting on November 27 to discuss remedial amendments, the LPA next met on November 30. By this time, the Regional Planning Council had prepared a "final draft" of proposed remedial amendments. Following discussion, the LPA voted to recommend the proposed amendments to City Council. Toward the end of the meeting, the Vice Chairman moved that the strip containing the Messiah Church and Fountain parcels be designated Low Density Residential. The motion passed. At a regular meeting on November 28, the City Council adopted Resolution 89-37, which provides for public participation procedures in connection with the comprehensive planning process. The ordinance calls for advertising of transmittal and adoption hearings in accordance with applicable law, the encouragement of oral or written public comment, and responses from the City Council or its designee. At a special meeting on December 5, the City Council considered the proposed amendments that had been recommended by the LPA. At this meeting, the City Council voted to change the designations for both strips, including all of Petitioners' parcels to Low Density Residential. The vote on the strip containing the Messiah Church and Fountain parcels was unanimous. The vote on the strip containing the Wilson and Tompkins parcels was four to one. Neither DCA nor Cocoa staff originally suggested the new designations for Petitioners' parcels. The new designations were not prompted by any changes to the original data and analysis. It does not appear that the Regional Planning Council, which also assisted in the preparation of the original plan, proposed that the parcels originally be designated Commercial, but it does not appear that the Regional Planning Council made the suggestion for a change in designation. At a special meeting on December 11, the City Council considered the proposed amendments, including the new designations for Petitioners' parcels, as well as the amendments to settle the pending state and federal litigation. No one appeared on behalf of any of the Petitioners to object to the proposed designations. However, in response to the objections of an owner of other property on the south side of State Route 524, whose property was also proposed for redesignation as Low Density Residential, representatives of Cocoa explained that the redesignation on both sides of State Route 524 was based on Cocoa's recent experience with DCA on unrelated plan amendments involving what is known as the Tenzel property. The city attorney indicated that staff was concerned that the objections lodged by DCA to the plan amendments involving the Tenzel property, which Cocoa was at the same time annexing, could possibly be made against the Commercial designation along both sides of State Route 524. The city manager also mentioned his concern that the plan be internally consistent. The Tenzel property consists of 157 acres on the south side of State Route 524 about one mile west of Westminster Drive. Cocoa transmitted the proposed Tenzel amendments to DCA on March 13, 1989. The proposed amendments designated 60 acres, including its entire State Route 524 frontage, Commercial and the remainder Industrial. Cocoa was planning to annex the Tenzel property, which was at the time of the transmittal in unincorporated Brevard County. In its Objections, Recommendations, and Comments (ORC) dated July 6, 1989, DCA objected that, among other things, the proposed designation was inconsistent with Future Land Use Element (FLUE) Policy 1.2, which is to discourage new linear commercial development. Instead, DCA recommended that new commercial uses should be clustered. DCA also complained that the designation was not supported by data and analysis and the portion of the FLUM covering the Tenzel property did not depict natural resources. On September 6, 1989, Cocoa annexed the Tenzel property and amended its plan. The adopted plan amendments designated only 10 acres Commercial and the remaining 147 acres Residential. 2/ The property designated Commercial was limited to only about half of the available frontage and was restricted to the northwest corner, which is farthest from the Tompkins and Wilson parcels and closest to the I-95 interchange at State Route 524 to the west. The adoption package contained considerable data and analysis concerning the newly annexed property. DCA issued its notice of intent to find the plan amendment in compliance on October 25, 1989. Notwithstanding the Tenzel-related concerns expressed at the December 11 hearing of the City Council, an owner of about 2.5 acres of land on Westminster Drive near State Route 524 objected to the redesignation of his land from Commercial to Low Density Residential. He argued that the land was unsuitable for residential uses due to traffic and other factors. In response, the city manager stressed the possibility of conflict with the plan if strip commercial were "proposed." 3/ With one member changing his vote as to the strip containing the Wilson and Tompkins parcels, the City Council voted three to two to transmit to DCA the proposed amendments, including the new Low Density Residential designations for the two strips containing the four parcels of Petitioners. The sole issue concerning the advertisements for the transmittal hearings of December 5 and 11 is their failure to identify the Wilson and Tompkins parcels as the subject of proposed land use changes. The advertisement for the December 11 hearing states in bold, capital letters at the top: "Notice of Change of Land Use and Comprehensive Plan." Following a brief paragraph announcing the time and place, the first item to be discussed is: "Proposal to change the use of land within the areas shown on the map below." Immediately below this sentence is a map of the entire city. Beside the map in one block is the statement: "Landuse changes to the future landuse map." A second block below the first states: "Black shaded areas to low density residential." The shading covers the High Density Residential strip including the parcels owned by the Messiah Church and Fountain, but omits the Commercial strip including the parcels owned by Wilson and Tompkins. The map for the December 11 hearing was published on December 4. The change of designation for the Wilson and Tompkins parcels was first proposed at the City Council hearing the following day. By letter dated March 22, 1990, DCA transmitted its ORC on the proposed plan amendments. The ORC informed Cocoa that DCA had no objections, recommendations, or comments on the transmitted amendments. Following receipt of the ORC, the LPA met on May 2, 1990, to review staff's response. During the meeting, the LPA discussed the Wilson parcel with her attorney, who objected that the Commercial designation would render the property useless due to its shallow depth. The attorney pointed out that a residential designation was impractical at that location; to the east, on the north side of State Road 524, townhouses had remained unsold for a long time. A motion not to change the Commercial designation on the Wilson and Tompkins parcels, while changing the designation for the rest of the strip to Low Density Residential, was seconded and discussed. It failed by a vote of four to three. At this point, the city attorney suggested that condominiums already in the area would be incompatible with Low Density Residential. The discussion acknowledged the protests of surrounding homeowners to the Commercial designation. A motion, seconded, to designate the entire strip north of State Route 524 as High Density Residential failed by a four to three vote. This vote was immediately followed by a motion, seconded, to designate the entire strip north of State Route 524 as Medium Density Residential. This motion passed by a five to two vote. The same attorney also represented the Messiah Church at the LPA meeting. He stated that the church intended to sell the property and the new designation was disadvantageous to a sale. In the ensuing discussion, it was noted that central sewer had yet to reach this site. A motion, seconded, was made to designate the Messiah Church parcel High Density Residential. The motion failed by a five to two vote. A motion, seconded, to designate the entire strip along the east side of U.S. Route 1 Low Density Residential passed unanimously. At the conclusion of the meeting, the LPA voted to adopt the amendments, subject to changes made at the meeting, and send the package to the City Council. The City Council meeting of May 8 was announced by a large display newspaper advertisement, which was published on April 27. The advertisement contained a map shaded to indicate that the designation of the two strips in question was proposed to be changed to Low Density Residential. During the meeting, the city attorney discussed the redesignation of the strip along State Route 524 from Low Density Residential, as it was shown in the transmittal amendments, to Medium Density Residential, as had been recommended by the LPA at its May 2 meeting. An attorney representing Wilson and Tompkins argued in favor of the Commercial designation given the property in the original plan. The city manager responded that the property was reexamined as a result of Cocoa's recent experience with DCA on the Tenzel plan amendments. Trying to avoid the appearance of strip commercial zoning, staff favored the proposed recommendation. The city attorney likewise warned the City Council to consider as a matter of policy the concern of DCA to avoid urban sprawl and strip commercialism. Nearby residents were almost uniformly in favor of a residential designation. Wilson complained that she purchased the property after being told by Cocoa that she could use it for commercial purposes. She also argued that 15 units per acre would allow 30 homes, which would add to the congestion in the area. After everyone had a chance to speak, a motion, seconded, called for designating the Wilson and Tompkins parcels as Commercial with the remainder of the strip designated Medium Density Residential. The motion failed three votes to two. A motion, seconded, to accept the recommendation of the LPA passed three to two. After other parcels were discussed, the city attorney raised the redesignation as Low Density Residential of the High Density Residential strip along the east side of U.S. Route 1. The attorney representing Messiah Church asked that the City Council consider the church property separately because it was for sale and worth more in its present designation as High Density Residential. He argued that buffering provisions of the plan would be violated by a Low Density Residential designation. Concerning his property, Fountain agreed with the attorney's reasoning and informed the City Council that no home had been built along U. S. Route 1 from Sharpes to south Rockledge for over 30 years. Following discussion, during which the Mayor noted that the Regional Planning Council had recommended that the property be designated Low Density Residential, a motion, seconded, to leave the strip High Density Residential failed three votes to two. A motion, seconded, to approve the recommendation of the LPA passed by the same margin. At the conclusion of the meeting, the City Council approved on first reading the ordinance adopting the plan amendments. Following another display newspaper advertisement indicating proposed land use changes for the two strips, the City Council again met on May 22, 1990. A minister of the Messiah Church praised the City Council for its recent decisions and announced that the church had decided that to meet the needs of the community it would minister to persons whose needs were presently unmet, like transients, mentally retarded persons, handicapped persons, and residents of halfway houses. Church officials had decided that such a ministry could be carried out from the present location with the proposed designation, which nonetheless remained an example of bad planning in their opinion. Addressing the strip north of State Route 524, the attorney representing Wilson and Tompkins objected to the absence of representatives from the Regional Planning Council despite the fact that they had been responsible for drafting the plan amendments. The city attorney advised that the Regional Planning Council had originally recommended that these parcels be designated Low Density Residential, but the City Council, as it was then constituted, decided to change the designation to Commercial in the original plan. The city manager again justified the decision as to the Wilson and Tompkins parcels based on DCA's objections to the transmittal amendments for the Tenzel property. After discussion on the State Route 524 strip concluded, the attorney for Messiah Church objected to the proposed redesignation from High Density to Low Density Residential. Again protesting the absence of the Regional Planning Council planners, he asked for an explanation of this action. The city manager responded that staff's concerns involved compatibility with existing uses and recommendations of citizens in the area. The city attorney added that the central sewer lines ended south of the Messiah Church parcel. Various persons spoke on both sides of the issue. After discussion of other plan issues, the City Council adopted Ordinance 15-90, which includes the plan amendments that, among other things, redesignate the Commercial strip containing the Wilson and Tompkins parcels to Medium Density Residential and the High Density Residential strip containing the Messiah Church and Fountain parcels to Low Density Residential. The failure of the published map to depict the four parcels or the two strips undoubtedly accounts for the absence of the Petitioners from the second transmittal hearing. However, the arguments of similarly situated landowners were presented at the hearing. Moreover, five months passed between the transmittal and adoption hearings. Nothing in the record suggests than any Petitioner could have accomplished more in a few days before the second transmittal hearing that he, she, or it accomplished in the several months that passed before the adoption hearings. All Petitioners complain that the inadequacy of explanations received at the hearing for the redesignations deprived them of effective public participation. Generally, they received responses to their demands for explanations. Several reasons emerge from the record for the redesignation of Petitioners' parcels. As to the Wilson and Tompkins parcels, Cocoa staff officials expressed concerned about the appearance of strip commercial designations. This explanation is difficult to justify objectively because the Commercial designations probably could not have been challenged by DCA in the subject plan amendments. DCA's objections to the transmittal plan amendments on the Tenzel property were not relevant to the Commercial designations given these four parcels, especially if taken in isolation from the strips of which they were a part. It is of course possible that, given Cocoa's recent experience in federal and state review of its land use planning efforts, beleaguered staff and local officials chose to exercise an abundance of caution. As to the Messiah Church and Fountain parcels, Cocoa staff and officials expressed concern about the unavailability of central sewer. However, the concern, at least as voiced personally by the Mayor at the May 8 City Council hearing, was not so much for the protection of natural resources as for the protection of nearby homeowners from the expense of tying in to central sewer lines if they were extended through the High Density Residential strip. Transcript of May 8 hearing, pages 48-49. The Mayor's concern points to the most compelling explanation for the new designations for all four parcels. Each designation was driven by political pressure from residents, which, to some extent in this case at least, may be characterized in the more appealing terms of concerns about surrounding land use compatibility. The forces of neighborhood preservation confronted the forces of development and, in this encounter, the former prevailed by a bare majority of the City Council. The evidence fails to establish to the exclusion of fair debate that the above-described facts are not consistent with the applicable public participation criteria. Data and Analysis in Support of Designations Cocoa did not submit new data or analysis when it submitted the adopted plan amendments. However, data and analysis transmitted with the original plan, as well as the Tenzel amendments, bear on the new designations. More pertinent to the Wilson and Tompkins parcels, the data and analysis note: Neighborhood commercial uses of low density and intensity should be located within neighborhoods or central to several residential clusters. Such a locational strategy would produce the beneficial effects of reducing the time and distance to neighborhood commercial, making trips quicker, easier, and more economical. Background Analysis, FLUE, page 1-26. At the same time, the data and analysis predict significant traffic impacts on State Route 524 as the impact of new residential developments is felt. Background Analysis, Traffic Circulation Element, page 2-16. On the other hand, another locational recommendation in the data and analysis is for the central business district, which is south of all four parcels, to serve as "the community focal point providing a mixture of retail and services." Background Analysis, FLUE, page 1-26. Projecting a population increase of nearly 4000 persons from 1986 to 2000, the data and analysis report that there is generally enough land available for residential needs. Background Analysis, Housing Element, p. 3-15. The analysis concludes that County will need about 309 acres for residential development through 2000. Background Analysis, FLUE, page 1-26. Additional data and analysis accompanying the Tenzel plan amendments lower this amount to 130.6 acres, at least as to single family residential. Tenzel Data and Analysis, Part II. However, a corresponding increase in projected population probably should have accompanied the Tenzel plan amendments because they involved an annexation. Although the data and analysis provide little useful information concerning the amount of acreage designated, rather than zoned, residential, there is no evidence on which to base a conclusion that changing the designations of the State Route 524 strip from Commercial to Medium Density Residential and the U.S. Route 1 strip from High Density Residential to Low Density Residential defy the data and analysis regarding the need for residential land. The data and analysis project that 385 acres will need to be devoted to commercial uses by 2000. Background Analysis, FLUE, page 1-26. In 1987, about 276 acres were in commercial use. Table 1-2, Background Analysis, FLUE, page 1-6. Although the data and analysis do not indicate the number of vacant or developed acres designated Commercial under the plan, Tables 1-3 and 1-4 indicate that about 800 acres are zoned commercial. Background Analysis, FLUE, page 1-7 and 1-11. The acreage zoned commercial and acreage designated Commercial are probably about the same. Table 1-4 indicates that 170 acres zoned commercial are vacant and suitable for development. If Cocoa requires another 100+ acres for commercial uses in addition to the 276 acres already in commercial use, the designation of 800+ acres as Commercial is ample to meet this need. Thus, the removal of a Commercial designation from the 15-acre strip, of which the Wilson and Tompkins parcels are a part, does not defy the data and analysis. The fairest conclusion that can be drawn from the data and analysis is that Cocoa suffers no deficiency, in terms of projected needs in the year 2000, in land designated Commercial or in either of the relevant residential categories. Pertinent to the Messiah Church and Fountain parcels, the data and analysis indicate that the City's wastewater treatment facility was to be expanded in November, 1988. Background Analysis, Capital Improvements Element, page 9-11. The project was completed, and the wastewater facility has a considerable reserve capacity. Presently, the Messiah Church and Fountain parcels, and the surrounding area, are served by septic tanks. The data and analysis indicate, however, that the City is committed to a program of gradually extending central sewer services to areas within the city not currently served. Background Analysis, Wastewater Element, page 3-5. More recently, the Tenzel analysis states: "A policy of phasing out septic tanks has been in place in order to protect the environment." Tenzel data and analysis, Section IV, Wastewater. A rough estimate of the cost to extend sewer lines the necessary one- quarter mile to the area of the Messiah Church parcel is $500,000. Although it might be more feasible for the developer of a High Density Residential project to provide the funds to extend sewer lines, the feasibility is not clear given a project on a 2.3 acre parcel in an underutilized part of town. In any event, Cocoa has demonstrated a commitment to expanding the central sewer system, require connections, and finance the expansion by special assessments. The data and analysis would support either designation. The evidence thus does not establish to the exclusion of fair debate that the designations are not supported by the data and analysis. Consistency of Designations with Criteria of Land Use Suitability Analysis, Encouraging Redevelopment of Blighted Areas, and Discouraging Urban Sprawl For the four parcels, the land use suitability analysis accompanying the original plan supports the designations adopted in the plan amendments. This issue has been considered above with respect to the issue involving supporting data and analysis. Given the changes in designations from Commercial and High Density Residential to Medium and Low Density Residential, respectively, no additional land use analysis was required for the reasons set forth in the Conclusions of Law corresponding to the preceding section. The evidence fails to establish to the exclusion of fair debate that the designations are not supported by a land use suitability analysis. For the reasons set forth in the Conclusions of Law corresponding to this section, no findings are necessary to address the issue of the consistency of the plan amendment with the criteria of Chapter 163, Part II, and Chapter 9J- 5 concerning redevelopment of blighted areas and urban sprawl. Findings concerning urban sprawl in the context of internal consistency are in the following section. Although not alleged as a basis for a finding of internal inconsistency, the issue of redevelopment of blighted areas has been considered in the following section as well, for the reasons set forth in the corresponding Conclusions of Law. Consistency of Designations with Plan Provisions Encouraging Redevelopment of Blighted Areas and Discouraging Urban Sprawl FLUE Objective 1.1 is to adopt land development regulations to "discourage the proliferation of urban sprawl." Goal 1 of the Public Facilities Element is to provide public facilities in a manner that "protects investments in existing facilities and promotes orderly, compact urban growth, and discourages urban sprawl." Similarly, Public Facilities Element Objective 4.1.2 is to coordinate the provision of public facilities with the FLUE "to discourage urban sprawl and maximize the use of existing facilities." Other provisions relied upon by Petitioners to show internal inconsistency are Public Facilities Objective 4.2.5 and FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6. Public Facilities Objective 4.2.5 is to adopt land development regulations that prohibit the installation of additional septic tanks within the incorporated city limits will be discouraged except when it is determined that the use of a septic tank system is the most efficient, cost effective and environmentally compatible alternative. [sic] FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6 provide that land development regulations shall be based upon the following locational criteria: Provisions of new residential uses shall be adequately balanced with the availability of residential support services including community facilities, shopping, schools, parks and open space, and transportation services. The City will encourage infill development in areas of existing viable housing, provide for redevelopment in blighted areas or areas in transition, and encourage new housing development in appropriate areas where community services exist or are programmed to occur. Residential areas shall be buffered from major transportation arteries and from incompatible non-residential uses. Residential areas should be served by sidewalks and, where practical, bikeways with convenient access to recreation, shopping, and schools. FLUE Policy 1.1.2 Commercial Areas Paragraph 2 4/ provides: New commercial uses shall be discouraged from linear commercial development and shall be encouraged to develop in clusters, with coordinated parking facilities, and with frontage roads where practical. Resulting in most cases from ineffective or no land use planning, urban sprawl is the extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard development pattern in which land uses are not functionally related to each other. Common patterns of the premature land development characteristic of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non-urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non-urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between the existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Urban sprawl typically interferes with one or more of four general objectives of effective land use planning: 1) promotion of the efficient use of land in the development of new, and maintenance of existing, viable mixed-use communities; 2) protection of natural resources in rural, agricultural, or other undeveloped or sparsely developed areas; 3) protection of agricultural lands and uses in rural, agricultural, or other undeveloped or sparsely developed areas; and 4) promotion of the efficient provision to both urban and non-urban areas of public facilities and services, such as water, sewer, roads, schools, police, fire, drainage, and other infrastructure, whether provided by public or private entities. The long strip of Commercial along State Route 524 suggests the presence of commercial sprawl along a thoroughfare. By removing the Commercial designation, Cocoa eliminates this type of sprawl. On the other hand, with respect to the Wilson and Tompkins parcels, Cocoa North resembles another example of sprawl. The introduction of compatible neighborhood commercial uses would tend to mix the uses with an immediate impact of relieving some traffic on State Route 524, as residents could make small purchases at, say, a convenience store located at State Route 524 and Westminster Drive. However, the solution adopted by Cocoa for the Wilson and Tompkins parcels, although possibly not the only one available under the circumstances, is consistent with the provisions of the plan to discourage urban sprawl. When compared to the prospect of the entire strip remaining designated Commercial, Cocoa's solution represents an improvement in terms of urban containment. The reduction of density for the strip east of U.S. Route 1 has few evident sprawl implications. To the extent this action may focus more dense residential development in the central business district or elsewhere where central sewer is already provided, the new designation serves the objectives to discourage urban sprawl. In any event, the new designation is not inconsistent with the sprawl provisions of the plan. The puzzling septic tank policy is probably intended to read that septic tanks are prohibited except when the use of a septic tank is the most efficient, cost effective, and environmentally compatible solution. The new designation for the strip east of U.S. Route 1 is not inconsistent with this policy. Consequently, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with the provisions in the plan to discourage urban sprawl. FLUE Objective 1.3 is to eliminate "[e]xisting conditions of slum and blight . . . by the year of 2000." FLUE 1.1.2 Redevelopment Area Paragraph 1 designates the Redevelopment Area, which is depicted by map and excludes the two strips containing Petitioners' parcels, as an area of slum or blight pursuant to Chapter 163, Part II, Florida Statutes. Paragraph 3 adds that the City shall redevelop the central business district, which is within the Redevelopment Area, as a viable business district consistent with surrounding historic resources, residential neighborhoods, and natural resources. There is no evidence of blight as to the Wilson and Tompkins parcels, notwithstanding the marketing problems experienced in connection with the nearby townhouses. Concerning the Messiah Church and Fountain parcels, a haphazard collection of largely commercial uses, such as a flea market, have accumulated over the years along U.S. Route 1 in the vicinity of the two parcels. The immediate area appears not to be economically vibrant, but no evidence establishes that the area is blighted. Further, no evidence suggests that the area's economic fortunes would be enhanced if the strip were designated High Density Residential, notwithstanding the Messiah Church's intended use of the parcel if it is not given a High Density Residential designation. The evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with plan provisions to encourage the redevelopment of blighted areas. Consistency of Designations with Regional and State Plans Regional Plan Policy 51.12 states: The "infilling" of existing urban areas and the renovation of blighted areas shall be encouraged in areas where existing wastewater transmission and treatment capacity are available for allocation, or funding has been committed for the provision of sufficient capacity. Emphasis should be placed on encouraging development activities within the urban service area boundaries as identified in local government comprehensive plans. Techniques of encouragement include but are not limited to: Provision of public or private facilities and services in strict accordance with adopted growth management objectives and policies . . Providing incentives for restoration or rehabilitation of blighted areas with existing sewer service through various actions such as but not limited to rezoning to other uses or higher densities Strengthening and preserving existing residential areas through the planned provision of public services, zoning and other techniques. Regional Plan Policy 57.7 5/ specifies the "designation of . . . activity centers . . . as a means of planning appropriate and balanced land uses on a scale and at an intensity consistent with the availability of public facilities and services . . Regional Policy Plan 51.10 limits the use of septic tanks in areas where conditions are suitable for installation and effective operation, provided that central sewer system services are not available due to lack of available treatment capacity, accessible facilities, or other considerations . . .. The following minimum criteria and procedures shall be adhered to . . . where regional resources may be adversely affected: * * * 3. The decision to require phasing out of septic tank systems where centralized sewer systems are available should be based solely upon the availability of those centralized systems and not upon any other consideration of ground water hydrology and current performance levels of septic tanks. For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan. Section 187.201(18)(a), Florida Statutes (the State Plan) is for Florida to "protect the substantial investments in public facilities that already exist and . plan for and finance new facilities . . . in a timely, orderly, and efficient manner." Goal 16 of the State Plan is to direct development "to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner." The first three policies under Goal 16 are: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the liveability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. In addition to the above-cited provisions relied upon by Petitioners, Policy 3 of Goal 5 of the State Plan is to increase the supply of safe, affordable, sanitary housing for low- and moderate-income persons by, in part, "recycling older houses and redeveloping residential neighborhoods." For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of the four Petitioners. ENTERED this 8 day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of August, 1991.
The Issue The issue in this case is whether Town of Yankeetown (Town) plan amendment 08-01 (adopted by Ordinance 2007-10) and plan amendment 08-CIE1 (adopted by Ordinance 2008-03), as modified by remedial amendment 09-R1 (adopted by Ordinance 2009-02) (together, referred to as the Plan Amendments or the Revised Comprehensive Plan), are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes (2009).1
Findings Of Fact The Town is located in the southwest corner of Levy County. The Town is bounded on the east by the Town of Inglis, on the north by unincorporated Levy County, on the west by the Gulf of Mexico, and on the south by the Withlacoochee River. The Town has significant planning challenges due to its geographic location. The maximum elevation in the Town is 10 feet, and the entire Town is located in the 100-year floodplain and Coastal High Hazard Area (CHHA). The Town is located in a rural area north of the banks of the Withlacoochee River and is surrounded by wetlands and environmentally-sensitive land. The Town is located at the end of County Road 40, and is separated from the nearest intersection of major roads (State/County Road 40 and U.S. 19) by the Town of Inglis. The Plan Amendments are a community-generated plan that incorporates the results of an extensive community visioning survey conducted by the Town and numerous public meetings that exceeded the public participation requirements for plan amendments contained in Florida Administrative Code Rule Chapter 9J-53 and Chapter 163, Florida Statutes. The Plan Amendments resulted in a Revised Comprehensive Plan for the Town. IWI is a legal entity that owns land within the Town and submitted oral or written comments on the Plan Amendments during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of the Plan Amendments. IWI contends that the Plan Amendments are not "in compliance" for several reasons. Population Projections and Need In its pleadings, IWI contended that "[t]here is inadequate data regarding projected population growth and the infrastructure needed to support the projected population growth for both the short term (five years) and the long term (horizon of the plan)"; "[t]he Plan Amendment is not in compliance with [Section] 163.3177(6)(a) Florida Statutes, by failing to provide future land use categories that are based on need"; and "[t]he Plan Amendment is not in compliance with the requirements of 9J- 5.006, Florida Administrative Code, demonstrating that future land use is based on need." Prehearing Stipulation § 2.H., U., and GG. However, its expert planning witness, Gail Easely, conceded that the data and analysis submitted by the Town was adequate to demonstrate that the residential land uses in the Revised Comprehensive Plan are based on need. IWI limited its contention on this point to the alleged inadequacy of the data and analysis to support the Revised Comprehensive Plan's new Light Industrial land use and revised commercial land use designations. The Revised Comprehensive Plan designates the same areas for commercial as the currently effective Comprehensive Plan, with the exception of one parcel that was changed from commercial to Light Industrial. The Revised Comprehensive Plan designates the commercial parcels near the Withlacoochee River as Commercial Water Dependent and the other commercial parcels as Commercial Neighborhood, totaling approximately 51 acres. Of the 51 acres of commercially-designated land, approximately 26 acres are currently developed and 25 acres are vacant and undeveloped. Of the 26 developed commercial acres, 19 parcels are currently developed and utilized as residential. There is no shortage of land available for commercial development in the Town. Inglis, a town located adjacent and to the east of Yankeetown, and Levy County near Yankeetown provide "more than adequate" existing commercial buildings on the market to serve the residents of Yankeetown and surplus vacant commercially- designated land to serve the future needs of Yankeetown. There is no shortage of commercial potential near the Town. The evidence was that it is acceptable for a local government to plan for the future need for the availability of commercial and industrial lands by maintaining the existing proportionate of availability of land use categories. Alternatively, it is acceptable to plan to mimic the proportions found to exist in other communities. This is essentially how the Town planned its allocation of commercial and industrial lands in its Revised Comprehensive Plan. IWI also contended that the intensity standards for commercial and industrial land uses in the Revised Comprehensive Plan unduly restrict commercial development. The existing Comprehensive Plan did not have explicit intensity standards and criteria for commercial land uses. After extensive debate at numerous public hearings, the Revised Comprehensive Plan established a floor/area ration (FAR) of 0.07, which limits the size for each single structure to a maximum of 3,000 square feet. It also allows for multiple 3,000 square foot structures on larger parcels in a "campus style" development. These standards and criteria reflect the existing, built environment of the Town and the Town's vision of itself. Existing commercial buildings run from 960 square feet to 3,600 square feet. Although the existing Comprehensive Plan did not have an FAR ratio, other standards--such as setbacks, square footage required for on-site septic tanks, drainfields, and parking, a 50 percent open space ratio, and a building height restriction of 35 feet--restricted commercial development in a manner similar to the Revised Comprehensive Plan. Petitioner's expert economist, Dr. Fishkind, testified that the restrictions on intensity of commercial land uses are not financially feasible because not enough revenue can be generated to make a profit, given the cost of land in Yankeetown. His testimony was refuted by his University of Florida colleague, Dr. James Nicholas, who was called as an expert economist for the Town. Dr. Nicholas pointed out that there was some commercial use in the Town and that economics would lower the cost of land in the Town if it is too expensive to allow the kind of commerce desired by the Town to make a reasonable profit. Businesses requiring more space to make sufficient revenue could locate outside the Town but close enough in Inglis or Levy County to serve Yankeetown as well. The character of the Town, its limited projected population growth, and the availability of commercial development nearby in Inglis and in Levy County all support the Town's decision to limit the intensity of commercial land use, and to maintain the existing amount of land available for commercial and light industrial uses. 15. Rules 9J-5.006(1)(a)(3) and 9J-5.006 (4)(a)(3) require the designation of some industrial lands, and the Revised Comprehensive Plan changes the designation of six acres of land located to the west of the intersection of County Roads 40 and 40-A from "Commercial" to "Light Industrial." Since industrial uses are generally not compatible with residential uses, the Light Industrial parcel is separated from residential parcels by commercial. The Light Industrial parcel is allocated for more intense commercial uses (such as fishing trap and boat storage) or reserved for economic development of light industrial uses that may wish to locate in Yankeetown, such as aquaculture. The existing ratio of residential to commercial land is adequate to supply the existing need as reflected by the existing surplus, vacant, and unused commercial lands. The Plan Amendments maintain residential lands and commercial lands in their general designations with refinements to the categories. The existing ratio and availability of vacant commercial land indicate that there is no deficit in any category, and maintaining the existing residential/commercial ratio preserves the existing character of the Town. Urban Service Area versus Urban Service Boundary IWI contends that "[t]he Plan Amendment is not in compliance with [Section] 163.3177(14), Florida Statutes, by failing to ensure that the urban service boundary was appropriately adopted and based on demonstrated need." This contention has no merit. Section 163.3177(14), Florida Statutes, encourages a local government to adopt an "urban service boundary." If one is adopted, there must be a demonstration "that the amount of land within the urban service boundary does not exceed the amount of land needed to accommodate the projected population growth at densities consistent with the adopted comprehensive plan within the 10-year planning timeframe." If a local government chooses to adopt an "urban service boundary" under Section 163.3177(14) and a community vision under Section 163.3177(13), Florida Statutes, it may adopt plan amendments within the urban service boundary without state or regional agency review. See § 163.3184(17), Fla. Stat. The Revised Comprehensive Plan does not use the term "urban service boundary," and the Town did not intend to adopt one under Section 163.3177(14), Florida Statutes, nor did it seek to avoid state and regional agency review of plan amendments under Section 163.3184(17), Florida Statutes. Instead, as explained on page 6 of the Revised Comprehensive Plan, it uses the term "urban area" to designate an area allowed to receive development rights from the sending area, namely the Residential Environmentally Sensitive (formerly Conservation) land use district. The Revised Comprehensive Plan uses the term urban service "area" (rather than "boundary") as the area located generally between County Roads 40 and 40-A that can receive development rights transferred from the Residential Environmentally Sensitive land use district. This area is depicted as "Urban Service Area Overlay Zones" Map 2008-02 of the Future Land Use Map (FLUM) series to more clearly designate the area on a larger scale than the FLUM map of the entire Town (Map 2008-05). The existing FLUM series also used the term "urban area" to depict the transfer of development rights receiving area. Financial Feasibility and Capital Improvements IWI’s expert, Dr. Henry Fishkind, testified that he ran his Fiscal Impact Analysis Model for the Town and concluded that the Revised Comprehensive Plan is not financially feasible because the Town cannot generate sufficient operating revenue to cover its operating costs without increasing property tax rates. Dr. Fishkind was not asked to explain how his computer model works, give any specific modeling results, or explain how he reached his conclusion. The Town's expert, Dr. James Nicholas, refuted his University of Florida colleague's testimony on this point as well. Essentially, Dr. Nicholas testified that a small and unique community like Yankeetown can choose to limit its operating costs by relying on volunteers and part-time employees. In this way, it can operate on a bare-bones budget that would starve a more typical and larger community. It also could choose to increase property tax rates, if necessary. Recent amendments to Chapter 163, Florida Statutes, in Senate Bill 360, the "Community Renewal Act," which became effective June 1, 2009, postponed and extended until December 1, 2011, the statutory requirement to maintain the financial feasibility of the five-year capital improvements schedule (CIS) for potable water, wastewater, drainage, parks, solid waste, public schools, and water supply. However, the Town concurred with Petitioner in requesting findings of fact and conclusions of law on this issue in case Senate Bill 360 is struck down in a pending constitutional challenge. The Plan Amendments include a CIE (Chapter 8) with a five-year CIS and a table to identify sources of revenue and capital projects sufficient to achieve and maintain the adopted levels of service, supported by data and analysis submitted with the Remedial Amendments. The Town's CIS five-year lists projects to achieve and maintain the adopted level of service (LOS) standards and identifies funding sources to pay for those projects. It describes the projects and conservatively projects costs and revenue sources. The CIS identifies revenue sources and capital projects for which there are committed funds in the first three years and identifies capital projects for which funds have not yet been committed in year four or year five. CIS is adequate to achieve and maintain the adopted level of service and is financially feasible. Stormwater and Drainage A drainage LOS is adopted in Revised Comprehensive Plan Policy 4.1.2.1, which states: "All new development and expansion of existing residential development greater than 300 square feet of additional impervious coverage shall meet requirements under Chapter 62-25, F.A.C. for Outstanding Florida Waters." The exemption of minor residential improvements of 300 square feet or less is reasonable and does not violate Rule Chapter 9J-5 or Chapter 163, Florida Statutes. The Department's ability to require retrofitting for existing drainage problems is limited by Rule Chapter 9J- 5.011(2)(c)5.b.i., which states that the Rule "shall not be interpreted or applied to [m]andate that local governments require existing facilities to be retrofitted to meet stormwater discharge water quality standards or stormwater management level of service standards." Nonetheless, the Town agreed in the Compliance Agreement to adopt appropriate policies and provide additional data and analysis on this issue. Policy 4.1.2.13 requires that the "Established Storm Water Drainage Committee shall monitor storm water facilities in [the] town, oversee maintenance functions, and evaluate and recommend capital improvements projects and funding sources." To pay for stormwater capital improvement projects, Policy 4.1.2.14 in the Plan Amendments states: "Yankeetown shall adopt a storm water utility fee ordinance and establish storm water utility fees by December 31, 2009 to provide necessary funding for capital improvements to the Town's storm water drainage facilities and maintenance of storm water drainage facilities." In accordance with the Compliance Agreement, the Town modified CIS Table 1 by adding $120,000 to FY 2011-2012 (Year 5) for the stormwater drainage improvement project and adding Note 5 to Table 1, which states: "Anticipated to be funded by a 75%/25% matching grant from SWFWMD, DEP or DCA. The matching (town) funds will be obtained from the proposed stormwater improvement fund. If no grants can be obtained and the stormwater improvement fund is not approved[,] the project will be funded from the general fund reserves and long term loans." Because the stormwater utility fee ordinance must still be adopted, and these funds are not technically committed at the time of adoption of the Plan Amendments, the stormwater capital improvement project was placed in year 5 (2011-1012) of the CIS. As funding becomes available and committed, the project may be moved to an earlier year in required annual updates to the CIS. Drainage also is addressed in new Objective 4.3.2 and in new Policies 4.3.2.1. through 4.3.2.5. The Town has addressed stormwater and drainage appropriately in the Revised Comprehensive Plan. Proportionate Share and Concurrency Management Policy 4.1.2.6 in the Public Facilities Element states: "The Town shall consider, and adopt as appropriate, a means to ensure that new development shares proportionate responsibilities in the provision of facilities and services to meet the needs of that development and maintain adopted level of service standards." Policy 8.1.3.4 in the CIE of the Revised Comprehensive Plan states: The Town shall consider, and adopt as appropriate, a means to ensure that new development shares a proportionate cost on a pro rata basis in the provision of facilities and services necessitated by that development in order to maintain the Town’s adopted level of service standards. Proportionate costs shall be based upon, but not limited to: Cost for extension of water mains, including connection fees. Costs for all circulation and right-of-way related improvements to accommodate the development for local roads not maintained by Levy County. Costs to maintain County Road 40 and 40[-]A and any other road within the town that are maintained by Levy County shall be governed by the Levy County Proportionate Share Ordinance and Yankeetown will continue to adopt and ensure the level of service is maintained [through] coordination mechanisms between the two planning departments. Costs for drainage improvements. Costs for recreational facilities, open space provision, fire protection, police services, and stormwater management. Although the Town does not have any public facility deficiencies, Rule Chapter 9J-5 requires that the CIE address "[t]he extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards"; and include a policy that addresses programs and activities for "[a]ssessing new developments a pro rata share of the costs necessary to finance public facility improvements necessitated by development in order to adequately maintain adopted level of service standards . . . ." Fla. Admin. Code R. 9J-5.016(3)(b)4. and (c)8. Policy 8.1.3.4 meets this requirement. The statute forming the basis of IWI’s contentions regarding proportionate fair share is Section 163.3180(16)(a), Florida Statutes, which requires local governments "to adopt by ordinance a methodology for assessing proportionate fair-share mitigation options." The evidence was that the requirements of this statute will be met by the Town's Proportionate Fair Share Concurrency Management Ordinance, which had been drafted and scheduled for adoption hearings at the time of the final hearing, and which will implement Policy 8.1.3.4. IWI did not present any evidence regarding the alleged lack of a concurrency management system in the Revised Comprehensive Plan and did not prove that the Revised Comprehensive Plan fails to meet the requirements of Rule 9J- 5.055 for concurrency management. The Town is exempt from maintaining school concurrency requirements. Objective 8.1.3 and Policies 8.1.3.1 through 8.1.3.6 of the Revised Comprehensive Plan meet the requirements of Rule 9J-5.055 for concurrency management. Policy 8.1.3.6 states: "The Town shall evaluate public facility demands by new development or redevelopment on a project by project basis to assure that capital facilities are provided concurrent with development." Policy 8.1.3.3 states: "The Yankeetown Land Development Code shall contain provisions to ensure that development orders are not issued for development activities which degrade the level of service below the adopted standard as identified in each comprehensive plan element. Such provisions may allow for provision of facilities and services in phases, so long as such facilities and services are provided concurrent with the impacts of development." The Town has a checklist system to track the specific impact of each development order on LOS concurrent with development. As indicated, a Proportionate Fair Share and Concurrency Management Ordinance had been drafted and scheduled for adoption hearings. Wastewater Treatment and Water Quality The Town is located entirely within the 100-year floodplain and coastal high hazard area. See Finding 2, supra. This presents challenges for wastewater treatment. The adoption of the Revised Comprehensive Plan followed public meetings and workshops held with representatives of DCA, including Richard Deadman, and expert Mark Hooks, formerly with the State of Florida Department of Health and Rehabilitative Services and now with the State of Florida Department of Health. The Plan Amendments include Policy 8.1.3.1.1, which states in part: Due to the location of the town within the 100 year flood plain and within the Coastal High Hazard Area (CHHA), there are no plans to provide central wastewater treatment until a regional system can be developed in conjunction with the neighboring town of Inglis and Levy County, and constructed outside the Coastal High Hazard Area east of U.S. Highway 19. In the interim period before a regional central wastewater system is available, the Town shall require in all land use districts: a. Yankeetown shall develop a strategy to participate in water quality monitoring of the Withlacoochee River; b. develop an educational program to encourage inspection (and pump-out if needed) of existing septic tanks; c. all new and replacement septic tanks shall meet performance based standards (10mg/l nitrogen). The Town's approach to wastewater treatment under the circumstances is sound both economically and from planning perspective and is sufficient to protect natural and coastal resources, including water quality, and meet the minimum requirements of Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is direction in the State Comprehensive Plan to: "Avoid the expenditure of state funds that subsidize development in high-hazard coastal areas." § 187.201(8)(b)3., Fla. Stat. This direction is also found in Chapter 163.3178(1), Florida Statutes, and in Rule 9J-5.012(3)(b)5., which require local governments to limit public expenditures that would subsidize development in the CHHA. It also is impractical for the Town, with a population of 760 people, to fund and operate a central wastewater system. It is logical and economical to do this in partnership with the adjoining Town of Inglis and Levy County, which could share in the costs and provide a site for a regional wastewater facility located nearby but outside of the CHHA. In contrast, this approach was not a viable option for the entirety of the Florida Keys. The Town already has begun water quality testing under Policy 8.1.3.1.1.a. The Town will be required to prepare educational programs to encourage inspection of existing septic tanks (and pump-out, if needed) under Policy 8.1.3.1.1.b. and under new Policy 4.3.1.2. In the short-term, while the Town pursues a regional treatment facility located outside the CHHA, Policy 8.1.3.1.c. in the Revised Comprehensive Plan will be implemented by new Policy 4.1.2.1.IV.B., which states: Yankeetown shall require that all new or replacement sanitary sewage systems in all land use districts meet the following requirements: All new or replacement sanitary sewage systems shall be designed and constructed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into floodwaters. Joints between sewer drain components shall be sealed with caulking, plastic or rubber gaskets. Backflow preventers are required. All new or replacement sanitary sewage systems shall be located and constructed to minimize or eliminate damage to them and contamination from them during flooding. The DCA has objected and recommended, and Yankeetown has concurred that all new and replacement septic systems are to be performance-based certified to provide secondary treatment equivalent to 10 milligrams per liter maximum Nitrogen. Performance-based treatment systems that are accepted as achieving the 10 mg/l nitrogen standard have already been tested by the National Sanitation Foundation and approved by the State of Florida Department of Health. Performance-based systems achieving the 10 mg/l nitrogen standard have been certified and approved for use in Florida and are now available on the market "in the $7,200 range" for a typical two- or three-bedroom home, and there are systems that would meet the 10mg/l nitrogen standard for commercial and multi-family buildings. Compliance with the performance-based 10 mg/l nitrogen standard is measured at the treatment system, not in the receiving water, and additional nutrient removal and treatment occurs in the drainfield soils. Performance-based treatment systems also require an operating permit and routine inspection and maintenance, unlike conventional septic tanks. The United States Environmental Protection Agency stated in its 1997 report to Congress: "Adequately managed decentralized wastewater systems are a cost-effective and long- term option for meeting public health and water quality goals." The existing Comprehensive Plan addresses wastewater in Chapter 4, Policy 13-2, which states: "Prohibit the construction of new publicly funded facilities or facilities offered for maintenance in the coastal high hazard area (including roads, water, sewer, or other infrastructure)." It also is addressed in the existing Comprehensive Plan in: Chapter 1, Policies 3-1 and 3-2 (Vol. II p. 11); and Chapter 4, Policies 1-2-1 and 1-2-7 (Vol. II, pp. 32, 34). A more in-depth analysis of the Town's previous approach to wastewater treatment is found in Volume III, Infrastructure Element, pp. 107-109 ("Facility Capacity Analysis, Sanitary Sewer"), which expresses similar long-term and interim approaches to wastewater treatment. The Revised Comprehensive Plan removes confusing and out-of-date references to "class I or other DOH-approved aerobic systems" used in the existing Comprehensive Plan. The Plan Amendments contemplate that the Town will pursue a long-term solution of a regional wastewater facility with the Town of Inglis and Levy County to be located outside the CHHA. The Revised Comprehensive Plan is adequate to protect the natural resources in Yankeetown and includes a short-term requirement that all new and replacement septic tanks meet the 10 mg/l nitrogen standard measured at the performance-based treatment system, together with a long-term requirement that the Town pursue a regional wastewater treatment plant to be located outside the CHHA. The Plan Amendments include: Objective 4.1.3; Policies 4.1.3.1 through 4.1.3.3 and 4.1.2.8 through 4.1.2.11; Policy 5.1.4.4; Policy 7.1.22.6; Policy 8.1.3.1; Policy 10.1.2.1; and Policy 10.1.2.3. These provisions move the Town in the direction of a regional central wastewater treatment located outside the CHHA and establish appropriate interim standards. Petitioner contended that the Town has allocated money for a new park when it needed a new central wastewater treatment facility. But the evidence was that the money for the new park came from a grant and could not be used for a new central wastewater treatment facility. Protection of Natural Resources and Internal Consistency The Future Land Use Element (FLUE) and the FLUM in the Revised Comprehensive Plan contain "Resource Protection" and "Residential Environmentally Sensitive" land use designations. In the existing Comprehensive Plan, these lands are designated Public Use Resource Protection and Conservation, respectively. The Plan Amendments reduce density in the Residential Environmentally Sensitive land use district, which contains a number of islands, to a maximum gross density of one dwelling unit per ten gross acres and maximum net density of one dwelling unit per five acres of uplands. Policy 1.1.2.1 in the Plan Amendments would allow development rights to be transferred from the Residential Environmentally Sensitive land to the development rights area receiving zone located between County Roads 40 and 40-A, as shown in Map 2008-02. The current Conservation designation for those lands sets a "maximum density of 1 unit per 5 acres"; and Policy 1-2 in the existing Comprehensive Plan allows the transfer of development rights within the Conservation district "as long as gross density does not exceed 1 dwelling unit per 5 acres." Under Policy 1-2 of the existing Comprehensive Plan, a minimum of "two (2) acres of uplands" is required for a development in the Conservation land use district. Likewise, under Policy 1.1.2.1.2 of the Plan Amendments, a minimum of "two (2) contiguous natural pre-development upland acres" is required in the Residential Environmentally Sensitive land use district. Although allowed, few if any transfers of development rights actually occurred under the existing Comprehensive Plan. To provide additional incentive to transfer development out of the "Residential Environmentally Sensitive" land use district and into the urban receiving area, Policy 1.1.2.7.F. of the Plan Amendments would allow the land owner to retain private ownership and passive recreational use on the "sending" parcel, including one boat dock. All other development rights on the sending parcel would be extinguished. Besides facilitating the transfer of development rights, it is expected that use of boat docks on the islands will decrease environmental damage from boats now grounding to obtain access to the islands. Although the policies for Environmentally Sensitive Residential and Conservation Lands are slightly different, the minor differences do not fail to protect natural or coastal resources or fail to meet the minimum criteria set forth in Rule Chapter 9J-5 and Chapter 163, Florida Statutes. Numerous policies in the Plan Amendments establish standards and criteria to protect natural and coastal resources, including: Policy 1.1.2.1.7(i), restricting dredging; Policies 1.1.1.2.10, 5.1.5.7, and 5.1.6.10, restricting the filling of wetlands; Policy 5.1.6.7, establishing wetlands setback buffers; Policy 5.1.6.4, establishing nutrient buffers; Policy 5.1.5.1, limiting dredge and fill; Policies 1.1.3.4 and 5.1.5.5, establishing standards and criteria for docks and walkways; Policy 5.1.16.1, protecting certain native habitats as open space; Policy 1.1.1.3, establishing low-impact development practices for enhanced water quality protection; and Policy 5.1.5.1, protecting listed species, including manatees. These provisions are more protective than the provisions of the existing Comprehensive and are supported by data and analysis. The Plan Amendments acknowledge and protect private property rights and include Objective 1.1.11 (Determination and Protection of Property Rights), providing for vested rights and beneficial use determinations to address unintended or unforeseen consequences of the application of the Plan Amendments in cases where setbacks cannot be achieved for specific development proposals due to lot size or configuration. FLUE Policy 1.1.1.2.8 and Conservation and Coastal Management Element Policy 5.1.6.4 in the Plan Amendments sets out procedures, standards, and criteria (including mitigation) for variances from the 150- foot Nutrient Buffer Setback. Taken as a whole, the Plan Amendments protect natural and coastal resources within the Town. Internal Consistency Docks, Open Space, and Dredge and Fill IWI contends that the Plan Amendments are internally inconsistent because policies addressing docks, open space, and dredging requirements use different language and with different meanings in different contexts. Policies in the Revised Comprehensive Plan establish 100 percent open space requirements for certain natural habitats, namely: (a) submerged aquatic vegetation; (b) undisturbed salt marsh wetlands; (c) salt flats and salt ponds; (d) fresh water wetlands; (e) fresh water ponds; and (f) maritime coastal hammock. Pile-supported, non-habitable structures such as boat docks and walkways are allowed if sited on other portions of a site. (Conservation and Coastal Management Element Policies 5.1.5.7, 5.1.6.7, 5.1.6.10, and 5.1.16.1). Other policies limit dredging to maintenance dredging. Policy 5.1.5.1 states that the Town will: Prohibit all new dredge and fill activities, including construction of new canals, along the river and coastal areas. Maintenance dredging of existing canals, previously dredged channels, existing previously dredged marinas, and commercial and public boat launch ramps shall be allowed to depths previously dredged only when the applicant demonstrates that dredging activity will not contribute to water pollution or saltwater intrusion of the potable water supply. Applicant must also demonstrate that development activities shall not negatively impact water quality or manatee habitat. Maintenance dredging is prohibited within areas vegetated with established submerged grass beds except for maintenance dredging in public navigation channels. This prohibition does not preclude the minor dredging necessary to construct "pile supported structures such as docks and walkways that do not exceed 4’ in width and constructed in accordance with OFW and Aquatic Preserve regulations," which are specifically exempted and allowed by Policy 5.1.5.7 of the Plan Amendments. Additional dredging and filling activities (beyond installation of pile supports) would not be required for docks sited where adequate water depth exists. Docks and walkways allowed under Policy 5.1.5.7 are not counted as open space. The policies concerning docks and walkways can be reconciled and do not render the Plan Amendments internally inconsistent. Low-Impact Development Policies IWI also contends that policies in the Plan Amendments requiring and encouraging low-impact development (LID) practices (which are not required or mandated under minimum requirements of Rule Chapter 9J-5 F.A.C. and Chapter 163, Florida Statutes, but adopted for additional water quality protection) are internally inconsistent. The Plan Amendments require LID practices for some new uses (new subdivisions, planned unit developments, and commercial development) and encourage them for existing uses. The Plan Amendments require or encourage these practices in different land use districts, which address different commercial or residential uses, and also discuss these practices in different elements of the Revised Comprehensive Plan, which addresses different purposes and concerns, including the FLUE (Chapter 1), the Public Infrastructure Element (Chapter 4), and the Coastal Management Element (Chapter 5). FLUE Policy 1.1.1.3 states that: In addition to complying with Outstanding Florida Water (OFW) standards, all new subdivisions, planned unit developments, and commercial development in all land use districts shall utilize "low impact" development practices appropriate for such use including: Landscaped biofiltration swales; Use native plants adapted to soil, water and rainfall conditions; Minimize use of fertilizers and pesticides; Grease traps for restaurants; Recycle storm water by using pond water for irrigation of landscaping; Dry wells to capture runoff from roofs; Porous pavements; Maintain ponds to avoid exotic species invasions; Aerate tree root systems (for example, WANE systems); Vegetate onsite floodplain areas with native and/or Florida-friendly plants to provide habitat and wildlife corridors; Rain barrels and green roofs where feasible; and Use connected Best Management Practices (BMPs) (treatment trains flowing from one BMP into the next BMP) to increase nutrient removal. Existing development shall be encouraged, but not required to use the above recommendations and shall not be considered nonconforming if they do not. In the Residential Low Density land use district, FLUE Policy 1.1.2.2.5 states: "All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' development practices that may be required or recommended in the Land Development Regulations." In the Residential Highest Density land use district, FLUE Policy 1.1.2.3.3 states: "Existing platted parcels are encouraged to utilize site suitable storm water management such as connecting to swales where available. All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' practices that may be required or recommended in the Land Development Regulations." In the Resource Protection and Public Use land use districts, FLUE Policies 1.1.2.5 and 1.1.2.6. require LID practices for all development. In the Neighborhood Commercial land use district, FLUE Policy 1.1.2.7.6 requires LID practices for "all development." In the Commercial Water-Dependent land use districts, FLUE Policy 1.1.2.8.9 requires LID practices for "all new commercial development." In the Light Industrial land use district, FLUE Policy 1.1.2.9.2 requires LID practices for "all development." These policies can be reconciled. The use of slightly different language in a particular district, or creation of an exemption for existing uses, does not render the policies internally inconsistent. Policy 4.2.2.2 of the Public Infrastructure Element (Chapter 4) of the Plan Amendments requires the adoption of land development regulations (LDRs) establishing minimum design and construction standards for new subdivisions, planned unit developments, and commercial development that will ensure that post development runoff rates do not exceed predevelopment runoff rates and encourage the same LID practices set out in FLUE Policy 1.1.1.3. IWI also contends that the inclusion of the phrase "as appropriate for such use" in the LID policies is internally inconsistent. To the contrary, it acknowledges that some of the listed practices may not be appropriate for a proposed specific use. For example, subsection (d) on "grease traps for restaurants" would not be appropriate if no restaurant is proposed. Under Section 163.3202, Florida Statutes, the Town has a year to adopt implementing LDRs providing further details, standards, and criteria for low-impact development BMPs for specific uses and within specific districts. The use of the phrase "as appropriate for such use" in the low-impact development policies allows for the exercise of engineering discretion in formulating LDRs. It does not render the policies internally inconsistent. Setbacks and Variances IWI also contends that the Plan Amendments are internally inconsistent because buffers contain different setback distances and allow for a variance to the setback buffers. The policies addressing setbacks can be read together and reconciled. The Plan Amendments include two types of setback buffers adopted for different purposes: (1) for structures, a 50-foot setback from the river and wetlands in Policies 1.1.1.2.7 and 5.1.6.7; (2) for sources of nutrient pollution other than septic systems (such as fertilized and landscaped areas and livestock sources), a 150-foot nutrient buffer setback from the river in Policies 1.1.1.2.8 and 5.1.6.4; and (3) for septic systems, special setbacks in Policy 1.1.1.2.11 (which is referred to in the nutrient buffer setback policies). These different setback policies were adopted for different purposes and are not internally inconsistent. Data and analysis supporting the establishment of these different setbacks further explains the different purposes of the different types of setbacks adopted in the Revised Comprehensive Plan. The availability of variances to the 150-foot nutrient buffer setback allows some use on a parcel to ensure protection of private property rights in the event of an unforeseen taking of all use on a specific parcel where an applicant cannot meet the setback but can meet the listed criteria for a variance and provide the mitigation required for impacts. Protection of private property rights is a competing concern that must be addressed under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. The Plan Amendments need not address every possible or potential set of facts and circumstances. Additional detail can be provided in implementing LDRs adopted under Section 163.3202, Florida Statutes. Specific implementation and interpretation of policies and LDRs applicable to any particular development proposal will be made by the Town during application review process. Seemingly inconsistent policies can be reconciled by applying the most stringent policy. Seemingly inconsistent policies also could be reconciled by application of a specific exemption, variance, or beneficial use determination. Site-specific application and interpretation of policies and LDRs in development orders, and issues as to their consistency with the goals, objectives, and policies of the Revised Comprehensive Plan, can be addressed under Section 163.3215, Florida Statutes. Small Local Governments IWI contends that the Town was not held to the same data and analysis standards under Section 163.3177(10)(i), Florida Statutes, as larger local governments. Under that statute and Rule 9J-5.002(2), the Department can consider the small size of the Town, as well as other factors, in determining the "detail of data, analyses, and the content of the goals, objectives, policies, and other graphic or textual standards required " Prior to adoption of the remedial amendments, the Town was unable to utilize GIS mapping. However, for the remedial amendments, GIS mapping was provided with the assistance of the Regional Planning Council. IWI did not prove beyond fair debate that the Town's data and analyses were insufficient under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. State and Regional Plans IWI also contends, for essentially the same reasons addressed previously, that the Plan Amendments are inconsistent with State Comprehensive Plan provisions on water resources, natural systems, and public facilities and Withlacoochee Strategic Regional Policy Plan provisions on natural resources, fisheries, and water quality. A plan is consistent with the State Comprehensive Plan and regional policy plan if, considered as a whole, it is "compatible with" and "furthers" those plans. "Compatible with" means "not in conflict with" and "furthers" means "to take action in the direction of realizing goals or policies of the state or regional plan." § 163.3177(10)(a), Fla. Stat. Using those definitions, IWI failed to prove beyond fair debate that the Revised Comprehensive Plan, as a whole, is inconsistent with the State Comprehensive Plan or the Withlacoochee Strategic Regional Policy Plan.
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 the Plan Amendments to be "in compliance." DONE AND ENTERED this 30th day of October, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2009.
The Issue The sole issue is whether the Petition to establish the District meets the applicable factors set forth in Section 190.005, Florida Statutes.
