Findings Of Fact The Parties. Petitioner, the Environmental Coalition of Broward County, Inc. (hereinafter referred to as the "Coalition"), is a Florida corporation. The Coalition has offices located in Broward County. The Coalition has approximately 500 members, most of whom reside in Broward County. A substantial number of the Coalition's members own property in Broward County and/or operate businesses within Broward County. The Coalition is a not-for-profit corporation, chartered for educational and scientific purposes. The primary purpose of the Coalition is to present objections and recommendations to local governments concerning planning issues on behalf of its membership. The Coalition is authorized to participate in actions of this type and to represent its membership in administrative proceedings. The Coalition presented oral and written objections to Broward County during the review and adoption process concerning the plan amendment at issue in this proceeding. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is the state agency charged with the responsibility of implementing the Local Government Comprehensive Planning and Land Development Act, Chapter 163, Part II, Florida Statutes (hereinafter referred to as the "Act"). Among other things, the Department is required to review local government comprehensive plans and amendments thereto for compliance with the Act. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government with the authority pursuant to the Act and the Broward County Charter to adopt and amend a comprehensive plan. The County has adopted the 1989 Broward County Comprehensive Plan (hereinafter referred to as the "Plan"). The Broward County Board of County Commissioners (hereinafter referred to as the "County Commission"), is the local planning agency for the County. The County Commission is advised on land use planning issues by the Broward County Planning Council (hereinafter referred to as the "Planning Council"). The Planning Council was created by the County Charter. Intervenors, Miramar Lakes, Inc., d/b/a Miramar Rock, Robert A. Whitcombe, Trustee, and the South Broward Trust own or have under contract virtually all of the property affected by the Plan amendment which is the subject of this proceeding. These Intervenors have entered into a joint venture agreement with Intervenor Atlantic Gulf Communities Corporation to develop the subject property. Intervenors applied for the amendment that is the subject of this proceeding and presented oral or written comments, recommendations and objections during the period of time between the transmittal hearing and adoption of the subject Plan amendment. The County's Plan. The County adopted a comprehensive plan as required by the Act in 1989. The planning horizon of the plan is 2010. The Plan includes two volumes of text, two volumes of support documents and associated maps. See Petitioner's exhibit 8. Volume One is text and is effective countywide. Volume Three contains support documents for the Plan. The Plan also includes the 1989 Broward County Future Land Use Plan Map (Series) (hereinafter referred to as the "FLUM"). The FLUM depicts the proposed distribution, extent and location of categories of land uses allowed under the Plan. Among others, those land uses include "residential" at various densities and "agricultural". Pursuant to the Plan, the eastern approximately one-third of the County may be developed. The developable area consists of approximately 400 square miles of land area. The western approximately two-thirds of the County are designated as water conservation areas and are separated by a levee from the developable one- third. Future land use elements of municipal comprehensive plans in the County must be in substantial conformity to the Plan. The Subject Property. The property which is the subject of the Plan amendment at issue in this case consists of 1,280 acres of a total of 1,965 acres (hereinafter referred to as the "Property"). The Property is located in the City of Miramar, in southwest Broward County, Florida, Sections 25, 26, 27 and 36, Township 51 South, Range 39 East. The Property is located in the southwestern portion of the developable one-third of the County. See Map 1 of Broward County exhibit 1. The Property is bounded on the east by S.W. 184th Avenue and on the north by Honey Hill Road. It is east of U.S. Highway 27. Part of the Property is vacant. Part of the Property is being used as cattle pasture and for a rock mining, batching, mixing and crushing operation. Existing land uses in the vicinity of the Property include vacant land, rock mining and some development to the north, single-family residential development to the east, rock mining and vacant land to the south, in Dade County, Florida. Residential development immediately to the east in a development known as "Silverlakes" is being developed at a density of three dwelling units per acre. Further to the west of the Property is the eastern boundary of the water conservation areas of the Everglades. These areas are separated from the rest of Broward County by a levee. The land use designation of the Property and other property in the surrounding area is "agricultural". Under the Plan, the land use designation allows agricultural uses and residential development of one dwelling per 2.5 acres. Under its current land use designation, a total of 786 dwelling units may be developed on the Property. The First Amendment Requested by the Intervenors. In early 1994 Intervenors filed an application with the County seeking an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Low (2) Residential". "Low (2) Residential" allows the development of two dwelling units per acre. The Planning Council conducted a review of the proposed amendment. The Broward County Department of Natural Resource Protection raised objections to the proposed amendment because the Property is located in an area of water recharge and wetlands. The area is identified as within a general wetlands area on the "Southwestern Generalized Wetlands Map" of the Plan. 30 Based upon the objections of the County Department of Natural Resource Protection, the staff of the Planning Council recommended denial of the proposed amendment. The South Florida Water Management District (hereinafter referred to as the "SFWMD"), an agency with broad regional responsibility for water management in southeast Florida, raised objections with the Planning Council concerning the location of the property in an area which was being considered for use as part of a project to restore the Everglades. The SFWMD was concerned that the Property is located within an area which has come to be known as the "East Coast Buffer". In early 1994, at the time of the initial review of the proposed amendment, the East Coast Buffer was a study area abutting the eastern water conservation areas of southeast Florida. The SFWMD was studying the East Coast Buffer for use in water conservation efforts in southeast Florida. At the time of the first review of the proposed amendment, the portion of the East Coast Buffer in which the Property is located was being considered for preservation as a reservoir site. The Planning Council transmitted the proposed amendment to the County Commission without recommendation. The County Commission decided not to transmit the proposed amendment to the Department for its review, ending review of the initial application. The Initial Review of the Subject Amendment. A second application on the Property was resubmitted by the Intervenors in March of 1994. The application was designated Application PC 94- 15. Application PC 94-15 sought an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Irregular 1.5 Residential". "Irregular 1.5 Residential" allows 1.5 dwelling units per acre. The amendment sought by Intervenors would have allowed an increase from 786 dwelling units to 2,947 dwelling units on the Property. An increase of 2,161 units. Application PC 94-15 was again reviewed. The same comments about, and objections to, the proposed amendment were raised concerning groundwater and aquifer recharge. The staff of the Planning Council again recommended denial of the proposed amendment. 41 The Planning Council recommended transmittal of the application, subject to the Intervenors satisfying the concerns raised by the SFWMD. On August 17, 1994, the County Commission transmitted Application PC 94-15 to the Department, conditioned upon the Intervenors satisfying the concerns of the SFWMD. The SFWMD objected to Application PC 94-15 because of its conclusion that the proposed future land use designation was not compatible with the East Coast Buffer then under evaluation by the SFWMD. SFWMD had developed data and conducted computer modeling concerning the utilization of a buffer for a variety of purposes, including reducing seepage of water from the Everglades, increasing groundwater recharge into aquifers and creating a natural buffer to protect the Everglades from the impacts of development. The SFWMD had commissioned a worldwide engineering firm, CH2M Hill to prepare a report on the East Coast Buffer. The SFWMD recommended that Application PC 94-15 not be approved until it had completed its study of the East Coast Buffer because the land use designation being sought might be incompatible with the conclusions reached from the SFWMD's and CH2M Hill's evaluation. The Department reviewed Application PC 94-15 and, based upon comments from the SFWMD similar to those raised before the County Commission, issued an Objections, Recommendations and Comments report concerning Application PC 94-15. The Department raised objections consistent with the adverse comments from the SFWMD. Modification of the Proposed Amendment. Parts of southwestern Broward County and northwestern Dade County were designated "Management Unit 5" by the SFWMD. Management Unit 5 was being considered, as recommended by CH2M Hill, as a reservoir area. Development of the Property was, therefore, not considered to be a use comparable with the concept of the East Coast Buffer being considered by the SFWMD at the time of the County's and Department's decision to reject Application PC 94-15. Intervenors worked with the SFWMD in an effort to find a way of modifying Application PC 94-15 to satisfy the SFWMD's concerns. SFWMD utilized computer modeling to simulate groundwater and surface water flows in Management Unit 5 to determine the impact of allowing development of the Property. The SFWMD concluded that Management Unit 5 was more suitable as a recharge area rather than as a reservoir. This conclusion was based, in part, of the transmissibility of the soil and other site conditions which were not conducive to storing water above ground for long periods of time. Use of Management Unit 5 as a recharge area and not a reservoir requires less surface area. Therefore, it was concluded that development in the area might be compatible with the SFWMD's East Coast Buffer concept. The SFWMD modeled four development alternatives for Management Unit 5 and analyzed the impact of each alternative on the efforts to retard seepage, provide groundwater recharge and enhance wetland benefits: (a) retaining the Property as a recharge area and allowing no development; (b) retaining the entire western two-thirds as a recharge area and allowing development of the eastern one-third; (c) retaining the western one-third as a recharge area and allowing development of the eastern two-thirds; and (d) allowing development of the entire management unit. Alternatives (b) and (c) assumed that a berm would be constructed between the recharge area and the developed area. After meeting with Intervenors and discussing the results of the modeling, Intervenors indicated willingness to remove the western portion of the Property from the proposed development. The SFWMD then conducted a more detailed, computer analysis of the following alternatives: (a) continuing existing conditions; (b) constructing a berm around Management Unit 5 and utilizing the entire area as a recharge area; (c) constructing a berm between the eastern and western sections of the Management Unit 5 and utilizing the western section for recharge with no development in the eastern section; and (d) alternative "(c)" with development of the eastern section. As a result of computer modeling of the alternatives, it was concluded that alternatives (b), (c) and (d) could significantly reduce seepage from the Everglades and increase groundwater recharge in to the aquifers when compared to development under the agricultural land use designation of alternative (a). As a result of the more detailed analysis, the SFWMD concluded that essentially all of its goals could be achieved for Management Unit 5 if the western section of Management Unit 5 is preserved even if development is allowed in the eastern section. The SFWMD concluded that the eastern two-thirds of the Property, consisting of approximately 1,280 acres, could be developed as "Irregular 1.5 Residential" if the western one-third, consisting of approximately 685 acres, was utilized as a recharge area. Intervenors agreed to preserve the western third of the Property (685 acres) and grant the SFWMD a flowage easement, consistent with the East Coast Buffer and at a savings of $43 million. On December 14, 1994, the staff of the SFWMD presented the results of the computer modeling to the SFWMD. On December 15, 1994, the SFWMD withdrew its objection to Application PC 94-15, conditioned upon the deletion of the 685 acres from the application and the granting of a flowage easement. The County and the Department were informed of the decision of the SFWMD. Approval of Application 94-15. On December 20, 1994, the County Commission adopted by Ordinance 94-55 an amendment to the Plan, Amendment PC 94-15 (hereinafter referred to as the "Amendment"), subject to the conditions suggested by the SFWMD, which resolved the SFWMD's objections. The Amendment included modifications to the FLUM and text amendments. The Amendment, in relevant part, modifies the future land use designation of approximately 1,280 acres of the Property from "Agricultural" to "Irregular 1.5 Residential". This will allow the construction of a total of 1,920 dwelling units on the Property, or an increase of 1,408 dwelling units over the number of dwelling that may be constructed under the current future land use designation for the Property. In light of Intervenor's modifications of the application, the removal of the SFWMD's objections and the approval of the application by the County, the Department found the Amendment to be in compliance with the Act. On February 14, 1995, the Department issued a notice of intent to find the Amendment in compliance. The County and the Department accepted and relied upon the data and methodology employed by the SFWMD and the conditions for removal of the SFWMD's objections. Petitioner's Challenge. On or about March 8, 1995, Petitioner filed a Petition for Formal Administrative Hearing with the Department challenging the Amendment. Petitioner filed an Amended Petition on April 25, 1995. At the commencement of the final hearing, Petitioner withdrew all issues it had raised in the Amended Petition except the issues of: (a) whether the data and analysis available supports a conclusion that there is a need for additional residential development; and (b) whether the Amendment is supported by data and analysis in light of an ongoing study of the East Coast Buffer. Residential Housing Need. The Plan includes the following Goal and Objective concerning the provision of adequate areas for residential use: Goal 01.00.00 Provide residential areas with a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a desired quality of life and adequate public services and facilities. Objective 01.01.00 Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. The Plan, including the methodology utilized to determine residential need, was found to be in compliance by the Department. The residential need methodology of the Plan utilized the Broward County Population Forecasting Model to project the population of southwest Broward County in 1994 to be 225,489 people. This projected population formed the basis for the allocation of residential housing units for Subregion 5 under the Plan. The Property is located in an area of southwest Broward County designated as Subregion 5 in the Plan. In reviewing the Amendment, the County conducted an analysis of the need for additional residential development in southwest Broward County. This analysis utilized, and was consistent with, the residential need methodology of the Plan. A summary of the data and analysis utilized by the County was provided to the Department. The County's analysis indicated that the population of Subregion 5 has exceeded the population projections for the Subregion of the Plan. By 1994, there were 284,361 people living in Subregion 5 or 17,872 more than projected in the Plan. The increased population rate of growth in Subregion 5 was projected to represent an increase in projected demand for approximately 6,847 residential units in excess of the projected demand expected under the Plan. The analysis also took into account amendments to the Plan which have resulted in a reduction of 1,087 residential units for Subregion 5. When combined with the increased population, the data and analysis supports a conclusion that there is a need for 7,934 additional residential units in Subregion 5. The Amendment increases residential housing in Subregion 5 by 1,134 dwelling units (1,920 units allowed under the Amendment, less 786 dwelling units allowed under the current agriculture classification), well below the projected need for additional residential units for Subregion 5. The data and analysis relied upon by the County and submitted to the Department supports the conclusion of the County that there is need for the proposed additional residential development approved by the Amendment. The data and analysis relied upon by the County and the Department was professionally acceptable and adequate to support the Amendment. The evidence presented by Petitioner failed to prove that the data and analysis relied upon by the County and the Department was not professionally acceptable and adequate. Rather than attempting to prove that the County's methodology was not professionally acceptable or was flawed, Petitioner utilized a methodology based upon an annualized population growth rate for Subregion 5. Petitioner offered evidence that there is sufficient residential housing approved under the Plan to meet the projected population for 15.6 years, beyond the remaining life of the Plan. The methodology utilized by Petitioner was, by the admission of the Petitioner's own witness, not a professionally acceptable methodology. The evidence failed to prove that the data and analysis relied upon by the County does not support its conclusion that there is sufficient need for the additional residential housing authorized for the County by the Amendment. The East Coast Buffer Zone. Efforts to restore the Everglades have been initiated and are ongoing. As a part of these efforts a group of technical and scientific staff members of various federal agencies involved in the restoration efforts were formed as the "Science Sub Group." The Science Sub Group was formed as an advisory group to provide guidance towards ecosystem restoration efforts. The Science Sub Group had no implementing authority. It issued at least one report in late 1993 which included an East Coast Buffer concept. The East Coast Buffer identified by the Science Sub Group included the area in which the Property is located. The Science Sub Group relied upon data obtained from the SFWMD and various computer models developed by the SFWMD, and SFWMD personnel contributed to the preparation of the report. The East Coast Buffer concept generally includes a series of interconnected water flow-ways along the eastern edge of the water conservation areas necessary to restore the Everglades. The federal government has also instituted a study known as the "Central & South Florida Project: Comprehensive Review Study" (hereinafter referred to as the "Restudy"). The United States Corps of Engineers is the lead agency of the Restudy. The first phase of the Restudy's efforts has resulted in a "Reconnaissance Report", also known as the "Recon Study". The second phase of the Restudy's efforts will be the feasibility phase. The feasibility phase will begin in the summer of 1995 and will be completed several years later. The purpose of the Restudy is to bring together the interested federal agencies to review the current management of the Everglades and identify strategies for altering management practices and systems to improve the Everglades. The Recon Study was completed in late 1994. It describes various conceptual strategies for restoring the Everglades. The determination of the feasibility of the strategies has not, however, been started, much less completed. Therefore, although the East Coast Buffer concept is considered in the Recon Study, the actual identification of the area which will constitute the Buffer has not been identified. Nor has the area which should constitute the East Coast Buffer been recommended in the Recon Study. The Recon Study identifies problems and opportunities, formulates alternative plans, evaluates conceptual alternative plans and recommends further study. The Recon Study is advisory. It does not identify, recommend or implement a plan of action. The Coalition presented evidence concerning the ongoing analysis of Everglades restoration efforts. That evidence proved that the Property is located within a very large area, which completely surrounds the Everglades, which is being considered as part of the Everglades restoration effort because of the impact of this large area on restoration efforts. The evidence presented by the Coalition, however, failed to prove that the Property has been, or will be, determined to be essential or even necessary for future Everglades restoration efforts. At the time of the approval of the Amendment and, even at the time of the final hearing of this case, no such determination had been made. Nor had any determination been made as to what will be necessary for the restoration of the Everglades or whether decisions will be made to carry out the necessary restoration efforts. As recognized by the Coalition in its proposed order: 52. The study necessary to make [a determination of the water levels needed] for the areas which are implicated by this amendment will be done in the next two years or three years. * * * 55. There is no way of telling, based on the data and analysis available at this point, how much water will be necessary in order to fully restore the Everglades. . . . Coalition proposed findings of fact 52 and 55. The Coalition also recognized the following: The Reconnaissance study has not reached the point where conclusions can be drawn about parcel specific uses. The next step is the feasibility planning phase, which is a much more detailed phase which will run for several years. . . . Coalition proposed finding of fact 107. Instead of attempting to prove that the data and analysis at the time of adoption of the Amendment indicated that development of the Property authorized by the Amendment would be detrimental to restoration efforts, the Coalition attempted to prove that development of the Property should be delayed until data and analysis is available indicating conclusively what the impact of development of the Property will be on restoration efforts. The Act does not require such delay. In addition to failing to prove what the impact of development of the Property will be on restoration efforts, the evidence presented by the Coalition also failed to prove that the conclusions reached by the Science Sub Group and the Restudy will even be implemented. The evidence presented by the Coalition failed to prove that the conclusions of the SFWMD with regard to the impact of the Amendment are not supported by data and analysis or were not arrived at by professionally acceptable methods. While the evidence proved that there will be some reduction in the amount of groundwater recharge function and seepage control function as a result of the Amendment, the evidence failed to prove what ultimate impact the reductions in recharge and seepage control will be or that the SFWMD's conclusions are not reasonable. While the Coalition proved that the SFWMD's conclusions were not based upon a consideration of what should be done to restore the Everglades, the evidence failed to prove that the information available was sufficiently conclusive that the SFWMD should have objected to the Amendment. The data and analysis relied upon by the County in approving the Amendment was collected and applied in a professionally acceptable manner. None of those agencies charged with responsibility to review the Amendment raised objections to its approval. The evidence failed to prove that the state of the data and analysis available to the County from the Science Sub Group and the Restudy or any other source concerning the area referred to as the East Coast Buffer and the Property is such that it proved that the data that was relied by the County upon was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department dismissing finding the Amendment "in compliance" and dismissing the petition in this case. DONE AND ENTERED this 19th day of July, 1995, in Tallahassee Florida. LARRY J. SARTIN, 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 19th day of July, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Coalition's Proposed Findings of Fact Accepted in 1-2. Accepted in 2. 3-4 Accepted in 3. Accepted in 4. Accepted in 5 Accepted in 4. Accepted in 5. Accepted in 4-6. Accepted in 5-6. Accepted in 6. Hereby accepted. Accepted in 12 14-15 Not relevant. 16-18 Not relevant. See 81-84. 19-25 Not relevant and not supported by the weight of the evidence. See 81-84. Accepted in 29. Not supported by the weight of the evidence. Hereby accepted. Accepted in 26 and hereby accepted. 30-31 See 24. Accepted in 26. Accepted in 36 and 62. Accepted in 62. 35-41 Hereby accepted. 42-48 These proposed findings are generally correct. They are not, however, relevant to the ultimate determination in this case. 49-50 Too speculative. Not supported by the weight of the evidence. The first sentence is hereby accepted. The last sentence is not relevant. See 96. Not supported by the weight of the evidence and not relevant. Not supported by the weight of the evidence. The first sentence is accepted in 96. The last sentence is not relevant. Hereby accepted. 57-63 Too speculative. Not supported by the weight of the evidence. 64-65 Not relevant. Hereby accepted. Accepted in 89 and 91 and hereby accepted. Accepted in 90 and 92. See 86 and 92. Hereby accepted. Although generally true, the evidence failed to prove that this finding specifically applies to the Property. Except for the first sentence, not supported by the weight of the evidence. Hereby accepted. Accepted in 31-33. Not supported by the weight of the evidence. 76-87 Although generally correct, these findings were too broad and the evidence failed to prove that they specifically apply to the Property. 88-90 Although generally correct, these proposed findings are not relevant. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. Too speculative. Not supported by the weight of the evidence. 94-97 Although generally correct, these proposed findings are not relevant. 98 Too speculative. Not supported by the weight of the evidence. 99-100 Not relevant. Hereby accepted. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. 104-105 Not relevant. Too speculative. Not supported by the weight of the evidence. Accepted in 97. Accepted in 90. Too speculative. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 111-114 Too speculative. Not supported by the weight of the evidence. The County's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 7. 3 Accepted in 8. 4 Accepted in 11. 5 Hereby accepted. 6 Accepted in 12. 7 Accepted in 13. 8 Accepted in 14. 9 Accepted in 15. 10 Accepted in 9-10. 11 Accepted in 18. 12 Accepted in 16. 13 Accepted in 17. 14 Accepted in 61. 15 Accepted in 60. 16 Accepted in 19-20, 26 and 62. 17 Accepted in 23. 18 Accepted in 21-22 19-20 Accepted in 24. 21 Hereby accepted. 22 Accepted in 37. 23-24 Hereby accepted. 25 Accepted in 68. 26 Accepted in 65-67. 27-28 Accepted in 67. 29-30 Hereby accepted. 31-32 Accepted in 28. 33 Accepted in 29. 34 Accepted in 30. 35 Accepted in 34. 36 Accepted in 31 and hereby accepted. 37 Accepted in 32-33. 38 Accepted in 31. 39 Accepted in 33. 40 Accepted in 35. 41 Accepted in 316. 42 Accepted in 37. 43 Accepted in 39. 44 Accepted in 40. 45 Accepted in 41. 46 Accepted in 42. 47 Accepted in 72. 48-49 Hereby accepted. Accepted in 73-77 and hereby accepted. Accepted in 76-77. Accepted in 38. Accepted in 79-80 Accepted 58 and 62. 55-57 Hereby accepted. Accepted in 82. Hereby accepted. 60-61 Accepted in 81-84. 62 Hereby accepted. 63-65 Accepted in 46 and hereby accepted. Accepted in 43 and 45. Accepted in 88. Accepted in 89-90. 69-70 Accepted in 85-86. 71 Accepted in 90 and 92-93. 72-77 Hereby accepted. Accepted in 32 and 44. Hereby accepted. None proposed. Accepted in 33. Hereby accepted. Accepted in 50. Accepted in 51. Accepted in 49 and hereby accepted. Hereby accepted. 87-88 Accepted in 52. 89-90 Hereby accepted. Accepted in 53 and 58 and hereby accepted. Accepted in 54. Accepted in 56. Accepted in 58. 95-96 Accepted in 59. Accepted in 60. Accepted in 61. The Department's and Intervenors' Proposed Findings of Fact Accepted in 1. Accepted in 7. Accepted in 8. Accepted in 11. Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 9-10. Accepted in 18. Accepted in 16. Accepted in 17. Accepted in 61. Accepted in 11 and 19-20. Accepted in 20. Accepted in 23. Accepted in 24-25. Accepted in 26. Accepted in 27. Accepted in 36-38. 22-37 Hereby accepted. Accepted in 43. Accepted in 88. Hereby accepted. Accepted in 31. 42-43 Accepted in 44. Accepted in 43 and hereby accepted. Hereby accepted. Accepted in 42. Accepted in 42 and 46. Accepted in 46 and hereby accepted. Accepted in 46. Accepted in 50. Accepted in 46. 52-53 Accepted in 48. Accepted 49. Accepted in 49, 52 and 54. Accepted in 50. Accepted in 51. Accepted in 54 and 57. 59-60 Accepted 54. 61-63 Accepted in 54 and hereby accepted. Accepted in 55. Accepted in 56-57. 66-67 Accepted in 58. 68-70 Accepted in 59. Accepted in 64. Accepted in 58 and 62. Accepted in 60 and 62. Accepted in 63. Accepted in 67. Hereby accepted. Accepted in 67 and hereby accepted. Accepted in 37 and hereby accepted. Not relevant. Accepted in 86. Hereby accepted. 82-83 Accepted in 86. Accepted in 87. Accepted in 89 and hereby accepted. Accepted in 90. Accepted in 90 and 92-93. Accepted in 93. 89-90 Hereby accepted. Not supported by the weight of the evidence. Accepted in 72-78. Accepted in 69-71. Accepted in 70. Accepted in 73-74 and hereby accepted. Accepted in 75. Accepted in 76. Accepted in 77. Accepted in 78. Accepted in 79-80. 101-102 Accepted in 82. Accepted in 83. Accepted in 83-84. Accepted in 81 and 84. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Brion Blackwelder, Esquire Jack Milbery, Esquire 8751 West Broward Boulevard, #206 Plantation, Florida 33324 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Tracy Lautenschlager, Esquire Broward County Attorney's Office 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Glenn Smith, Esquire Michael A. Cohn, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Boulevard Post Office Box 1900 Fort Lauderdale, Florida 33302 Honorable Gerald F. Thompson Chairman, Broward County Board of County Commissioners Governmental Center 115 South Andrews Avenue Fort Lauderdale, Florida 33301
The Issue The issue to be determined in this case is whether Martin County's amendments to its Land Development Regulations (LDRs), adopted by Ordinance 833, are consistent with the Future Land Use Element of the Martin County Comprehensive Plan.
Findings Of Fact The Department is the State land planning agency. The Martin County is a political subdivision of the State of Florida. Through its Board of County Commissioners, it adopted Ordinance 833 on November 17, 2009, amending the LDRs pertaining to fishing and hunting camps. Petitioner is a person who resides in Martin County. She has an ownership interest in three parcels of land in the County. Two of the parcels are adjacent to land that is eligible for development as a hunting camp under the new LDRs. An owner of land that is adjacent to one of Petitioner's parcels has submitted plans for a hunting camp to the County. Petitioner's principal complaint is that Ordinance 833 allows new commercial uses at fishing and hunting camps, which she contends are uses that are inconsistent with policies of the Future Land Use Element of the Comprehensive Plan that require new commercial development to be located in the Primary Urban Service Area and which require that agricultural lands be protected. There are no policies of the Martin County Comprehensive Plan that specifically address fishing and hunting camps, but the following policies are relevant to the determination of the issues raised by Petitioner. Policy 4.7A.2. Development in Primary Urban Service District. Martin County shall require new residential development with lots of one-half acre or smaller, commercial uses and industrial uses to locate in the Primary Urban Service District. This requirement is to ensure consistency with the County's growth management policies and Capital Improvements Element and to assure that the Plan's LOS standards will be provided and maintained cost-efficiently. Policy 4.7A.10. Priority for public services. In providing public services and facilities and allocating public financial resources for them first priority shall be given to the Primary Urban Service District. Second priority shall support the staged development of suitable lands in the Secondary Urban Service District at densities specified in Policy 4.7B.1 or as they are converted to the Primary Urban Service District. Public Services that support or encourage urban development in other areas shall not be provided, except for improvements necessary to remedy an existing deficiency. Policy 4.12A.2. Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural agricultural uses. Policy 4.13A.1 The FLUM identifies those lands in Martin County that are allocated for agricultural development. This designation is intended to protect and preserve agricultural soils for agriculturally related uses, realizing that production of food and commodities is an essential industry and basic to the County's economic diversity. * * * The further intent of the Agricultural designation is to protect agricultural land from encroachment by urban or even low density residential development. * * * Policy 4.13A.8(3) General Commercial development. * * * The areas designated for General Commercial development are specifically not adapted to permanent residential housing, and such uses shall be located in other areas designated for residential development. On the other hand, transient residential facilities including hotels and motels, timesharing or fractional fee residential complexes, or other transient quarters should be located in areas designated for commercial use. Ordinance 833 amended Article 3 of the LDRs, entitled "Zoning Districts." Section 3.3 was amended to change the definition of "fishing and hunting camps." The previous definition excluded overnight lodging facilities, but the amendment changed the definition to include "overnight accommodations, food, transportation, guides and other customary accessory uses and facilities as set forth in Section 3.76.1." Section 3.76.1 is a new section entitled "Hunting Camps" and establishes development standards for hunting camps, including a limitation on overnight accommodations to six guest rooms and a limitation on food service to customers of the hunting camp. Sales and rentals of hunting supplies and accessories are also limited to customers of the hunting camp. Ordinance 833 also defined "fishing and hunting camps" in a new Section 3.403. The definition in Section 3.403 is identical to the definition in Section 3.3, except that instead of including a reference to Section 3.76.1, the definition refers to Section 3.412.A. Section 3.412.A. adds the same development standards for hunting camps that are found in Section 3.76.1. There is no material difference between the two definitions. Common sense indicates that the lands designated "Agricultural" on the Future Land Use Map are more appropriate areas for fishing and hunting camps than the Primary or Secondary Urban Service Districts. People generally fish, hunt, and camp in rural areas, not in urban areas. Martin County contends that fishing and hunting camps are not commercial land uses, but are recreational uses. Petitioner claims, however, that the addition of overnight accommodations, food facilities, and accessory uses at fishing and hunting camps makes them inconsistent commercial uses. The dictionary definition of the word "camp" includes the idea of staying overnight in an area. See, e.g., Webster's New Collegiate Dictionary 158 (1979). If a person stays overnight in a camp, he or she must have shelter and food. It is a matter of general knowledge of which the Administrative Law Judge takes judicial notice that fishing and hunting camps often provide lodging for hunters and fisherman to stay overnight and facilities for eating. Policy 4.12A.2 of the Comprehensive Plan allows "low- intensity uses," including "small-scale service establishments necessary to support rural and agricultural uses" outside of urban service districts. This policy co-exists with Policy 4.7A.2, which requires new commercial development to be located in the Primary Urban Service District. Obviously, therefore, low-intensity uses and small-scale service establishments that support rural and agricultural uses are not the type of uses, even if they have commercial aspects, that must be located in the Primary Urban Service District. Although the County does not claim (for reasons that are not clear) that "customary accessory uses and facilities" for fishing and hunting camps are encompassed by the term "small-scale service establishments," the County asserts that customary accessory uses and facilities are the types of low- intensity uses which Policy 4.12A.2 allows outside the urban service districts. That is a reasonable interpretation of Policy 4.12A.2. The LDRs establish development guidelines for hunting camps that are consistent with low-intensity uses. Petitioner argues that no development guidelines are established for fishing camps and, therefore, they could be potentially include high-intensity commercial activities. If Ordinance 833 did not create development guidelines for fishing camps, that would not constitute a change because the previous LDRs already permitted fishing camps in agricultural areas without specifying any development guidelines other than a prohibition against overnight lodging. Both of the new definitions for "fishing camps" created by Ordinance 833 appear to incorporate by reference the guidelines applicable to hunting camps. However, even if the guidelines are not applicable to fishing camps, it cannot be assumed for the purposes of this consistency determination that the new LDRs permit uses at fishing camps that would not be low-intensity uses. The LDRs do not express or imply that intent. The new LDRs are not inconsistent with Policy 4.7A.10, related to the County's priorities for providing public services, because the LDRs do not support or encourage urban development. The new LDRS are not inconsistent with Policy 4.13A.1, related to the protection of agricultural soils because the allowance in the Comprehensive Plan for uses other than farming in the agricultural areas shows that the policy to protect agricultural soils is not meant to preserve every square foot of agricultural soil for farming. The new LDRS are not inconsistent with Policy 4.13A.1, related to the protection of agricultural lands from encroachment by urban or residential development because the LDRs do not authorize urban or residential uses in conjunction with fishing and hunting camps. Petitioner did not show that the restricted commercial activities at fishing and hunting camps are urban uses. Therefore, such uses do not contribute to urban sprawl. They are reasonably treated by the County as low-intensity, support services which are consistent with the Comprehensive Plan policies to prevent urban sprawl into agricultural areas and to otherwise protect agricultural lands.
The Issue The issue in this case is whether the amendment to the Putnam County Comprehensive Plan adopted by Ordinance 2009-23 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1/
Findings Of Fact The Parties Petitioner Bonnie Conklin resides and owns property at 600 Stokes Landing Road. She submitted oral comments to the County at the adoption hearing on the amendment. Petitioner Wendy Goodson owns property at 595 Stokes Landing Road in Putnam County. She submitted oral comments to the County at the adoption hearing on the amendment. Putnam County is a political subdivision of the State and has adopted a comprehensive plan which it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Intervenor Stokes Landing Enterprises, LLC (“Stokes Landing”), is a Florida limited liability company. It owns the Property affected by the amendment and submitted oral comments and evidence during the local hearings on the amendment. The Amendment The amendment changes the future land use designation of the Property from Agriculture II to Industrial. Section One of Ordinance 2009-23 provides that the re-designation of the Property is subject to the terms and conditions of the development agreement between the County and Stokes Landing, which is attached as an exhibit to the ordinance. The Property has approximately 220 feet of frontage on the St. Johns River. The development agreement requires that the Property be developed as a Planned Unit Development (PUD) for a “ship building and repair facility.” Contemporaneous with the adoption of the amendment, the County rezoned the Property to PUD. The development agreement includes the following recitals: Developer and the County wish to enter into this Agreement to set forth the conditions under which development of the facility shall be used. The County has entered into this Agreement in consideration of the commitment by Developer to construct certain improvements as further described in Section 3 below (hereinafter the “Improvements”); and to redevelop the site and utilize the Property as a Planned Unit Development (PUD) only, with the understanding that the Developer shall apply for a PUD to operate a ship building and repair facility. * * * G. The conditions specified within a Planned Unit Development (PUD) zoning district established by Developer pursuant to this Agreement will aid redevelopment of the Property, limit localized impacts of the Property and advance the implementation of the County’s Comprehensive Plan. Section 3 of the development agreement requires that the developer make the following improvements: Access Roadway Improvement: Developer at its sole cost and expense shall design, engineer, permit, construct and install in accordance with all applicable laws, rules and regulations and the County’s approval of the design, the improvement(s) of the Access Roadway from Stokes Landing Road to the subject site via the established access easements. County approvals shall not be unreasonably withheld. Timing: Developer shall complete the Access Roadway Improvements prior to starting redevelopment of the site for the proposed ship building and repair use. Planned Unit Development (PUD) Zoning: Developer shall obtain approval of rezoning the Property to PUD prior to starting redevelopment of the site and shall maintain the approved PUD zoning throughout the duration of the Industrial future land use on the site. This requirement does not preclude any future request for a Comprehensive Plan Amendment to another future land use category and subsequent associated rezoning requests to a compatible zoning district. The Property and Surrounding Land Uses Most land uses contiguous to or adjacent to the Property are residential uses on lands designated Agriculture II. However, 100 feet south of the Property are lands along the St. Johns River designated Conservation. There are other Conservation lands across the river from the Property and north of the Property. The only other land uses in the area are a commercial well-drilling business on land designated Agriculture II, and a shipyard known as St. Johns Ship Building on lands designated Industrial. The St. Johns Ship Building facility is located on 101 acres and is approximately 900 feet north of the Property. The lands abutting the Property on the west, south, and east are currently undeveloped. Across the St. Johns River from the Property is Stokes Island, which is also undeveloped. About 60 percent of the Property lies within the 100- year flood zone. There are wetlands on the Property which are generally of low quality due to invasive vegetation. Historic Uses and Improvements on the Property The staff report for the amendment states that the purpose of the amendment is to “make the land use designation of the property consistent with the existing use of the land,” which “according to the applicant,” has been ship building since the 1960’s. This statement incorrectly characterizes both the existing use and the past use of the Property. Aerial photography shows that much of the Property was cleared in 1943. In the 1940s and early 1950s, the County hauled shell rock from the Property for road building. The Property was used intermittently to build fishing vessels between the 1970's and 1998. The number of vessels that were built on the Property was not established by the record evidence. Some barge demolition activities also occurred on the Property in 2006 and 2007. Intervenor started to build a barge on the Property in 2008, but was almost immediately stopped by a County code enforcement officer because such activities are not allowed under the Property’s agricultural zoning. The evidence shows that the barge building and barge demolition activities, and probably the earlier boat building activities, were conducted in violation of the agricultural zoning of the Property. Two steel mooring pilings and remnants of a dock or platform are still located on the Property. There was some dispute about whether there still exist on the Property the rails or “ways” used in the past for hauling vessels out of the water and for launching vessels. Although a 2008 survey of the Property (Joint Exhibit 12) shows the rails, they do not appear in recent photographs of the Property (Respondent/Intervenor’s Exhibits 3.1 through 3.4 and Petitioners’ Exhibits 13.1 through 13.3). The shoreline along the east boundary of the Property is not bulkheaded and, except for the clearing that has occurred on the Property, remains in a relatively natural condition. Whether the Subject Property is a Port The parties disputed whether the Property is an existing water port, which is relevant to the Comprehensive Plan policies regarding the location of industrial uses, as will be discussed below. The term “port” is not defined in the Comprehensive Plan. “Port facility” is defined in Florida Administrative Code Rule 9J-5.003(92) as: [H]arbor or shipping improvements used predominantly for commercial purposes including channels, turning basins, jetties, breakwaters, landings, wharves, docks, markets, structures, buildings, piers, storage facilities, plazas, anchorages, utilities, bridges, tunnels, roads, causeways, and all other property or facilities necessary or useful in connection with commercial shipping. This definition is not particularly helpful in resolving the dispute in this case, because it is a list of facilities (e.g., buildings) that can be associated with a port, rather than an identification of the elements that are essential to being a port. In the traffic circulation section of the Putnam County Comprehensive Plan Data, Inventory, and Analysis, under the heading “Port Facilities,” there is one water port identified: Putnam County is currently served by a small barge port on the St Johns River, which is located between downtown Palatka and Rice Creek. . . . This barge facility is incorporated into a larger industrial park setting and provides an alternative method of moving certain types of goods and material into and out of the County. The word “port” is defined in Webster’s Dictionary as “a place where ships may ride secure from storms” and “a harbor town or city where ships may take on or discharge cargo.” Webster’s New Collegiate Dictionary 889 (1979 ed.) The latter definition indicates that the transport of cargo by water between land sites (ports) is the core of the meaning. When deep harbors, channels, and turning basins occur naturally or are created and used by ships, there is little cause to dispute that a port exists. Here, there are no such natural or man-made features. The shoreline at the subject Property was not shown to differ from much of the shoreline along the St. Johns River.2/ As indicated above, a port is a transportation facility where waterborne goods are loaded and unloaded. A port is distinct from a “boatyard,” which is defined as “a yard where boats are built, repaired, and stored and often sold or rented.” Merriam-Webster’s On-Line Dictionary (2009) The remnant boat building facilities on the Property do not make a port. It is found that the Property was used intermittently in the past as a boatyard, but it was never a water port. Road Access to the Property The Property’s connection to the nearest public, paved road, is currently by easements over an unpaved drive. A 50- foot-wide easement extends north from the Property approximately 240 feet over an unpaved drive, then makes a 90-degree turn to the west along a 25-foot-wide, unpaved easement that runs about 325 feet to the beginning of a paved portion of the easement, then continues 545 feet further west to the publicly owned and paved Stokes Landing Road. Petitioners Conklin and Goodson own property and reside along the 25-foot easement. There are about a dozen other residences along the easements. There are many other residences along the public portion of Stokes Landing Road to its connection with U.S. 19. Petitioners attempted to show that Intervenor’s access to the Property from the public portion of Stokes Landing Road is legally insufficient because a small strip of land at the intersection of the 50-foot easement and the 25-foot easement is not included in the easements held by Intervenor. However, because Intervenor showed colorable easement rights over the entire private roadway, the Administrative Law Judge declined to take evidence on or determine the merits of the adverse real property claim. Stokes Landing Road is classified as a “local road” by Putnam County. It is not an arterial or collector road. Although the properties along the unpaved road have a mailing address of Stokes Landing Road, some of the official documents that describe or depict Stokes Landing Road do not include the private easement segments. It was estimated that the proposed boatyard would generate about 30 daily employee vehicle trips and one trip for pickup or delivery. Intervenor presented evidence that a truck with a wheel base of 50 feet (typical of a truck and semi-trailer) could make the 90-degree right turn from a 25-foot-wide roadway onto a 50-foot-wide roadway. However, to do so, the truck would have to use the left side of the 25-foot easement and the left side of the 50-foot easement (from the driver’s perspective). In other words, the truck would have to enter the lanes used by oncoming traffic. Internal Consistency Petitioners contend that the amendment is inconsistent with Policy A.1.9.3.A.6.d of the Future Land Use Element (FLUE) of the Comprehensive Plan. That policy states: Industrial Uses shall be located on sites that “use existing utilities or resources; utilize one or more transportation facilities such as air ports, water ports, collector roads, arterial roads, and railroads; do not require significant non- residential vehicular traffic to pass through established neighborhoods; and are sufficiently separated and/or buffered when necessary from residential and other urban uses to minimize adverse impacts of noise, glare, dust, smoke, odor or fumes. The Property is not located on a collector road or arterial road. It is not a water port. The amendment would require significant non- residential vehicular traffic to pass through an established neighborhood. The non-residential traffic is significant because it more than doubles the existing traffic in the most rural portion of Stokes Landing Road and would create an unsafe condition for every trip to and from the Property by a large truck. It is not sound planning to locate an industrial use on property that is served only by a narrow residential driveway. It is not sound planning to locate an industrial use on a road where access by large trucks will require that the trucks travel in the oncoming traffic lanes. The Property is not sufficiently separated or buffered from residential uses to minimize the adverse impacts of noise, glare, dust, smoke, odor, and fumes. Currently, there are vacant, wooded parcels adjacent to the Property, but the Intervenor has no control over these parcels and they will not always be vacant. The proposed industrial use is incompatible with the dominant pattern of development surrounding the Property, which is rural residential. Intervenor argues that the Agriculture II land use designation allows “intensive” agricultural land uses, such as slaughter houses, suggesting that the residents are already subject to the possibility of adverse impacts from noise, glare, dust, smoke, odor, and fumes. However, there are no intensive agricultural uses in the area and no evidence to suggest that such development is likely to occur in the future. The dominant land use is likely to remain rural residential. Petitioners contend that the amendment is inconsistent with Goal 1 of the FLUE, which is to maintain the quality of life by “establishing a pattern of development that is harmonious with the County’s natural environment and provides a desired lifestyle for County residents.” The proposed boat building and repair operation in this rural residential neighborhood would significantly degrade the desired lifestyle of the residents in the area. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.1.1.A.3., which prohibits land uses that generate, store, or dispose of hazardous waste in “areas of special flood hazard”. However, Policy A.1.1.1.A.2.b. expressly allows water-dependent components of a development to be located in areas of special flood hazard. When FLUE Objective A.1.1 and its accompanying policies are read in pari materia, they indicate that a water-dependent land use can be allowed in the floodplain as long as any generation, storage, or disposal of hazardous waste will occur outside of the floodplain. Petitioners did not show that the proposed boatyard cannot be operated in conformance with these policies. For similar reasons, Petitioners’ contention that the amendment is inconsistent with FLUE Policy A.1.1.E. is unpersuasive. That policy encourages the clustering of development away from flood-prone areas. However, in the case of water-dependent land uses, the water-dependent components of the land use must be located near the water. Petitioners contend that the amendment is inconsistent with FLUE Objective A.1.3 and FLUE Policy A.1.3.1, which encourage the elimination or reduction of non-conforming uses. Petitioners argue that past boat building and boat repair operations at the Property were non-conforming uses under the Agriculture II land use category and should be eliminated. Petitioners’ arguments are not persuasive because, if the amendment is approved, the boatyard uses would not be inconsistent with the FLUM. Furthermore, Petitioners showed that there is no existing, non-conforming use of the Property, so there is no non-conforming use that needs to be reduced or eliminated. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.3.2, which states: Adequate buffering and separation between land uses of different densities and intensities shall be provided in accordance with the Land Development Code to minimize compatibility issues. This policy directs that the Land Development Code (“Code”) shall establish buffering requirements to minimize incompatibility. Compatibility is also a comprehensive planning issue that can cause an amendment to be “not in compliance,” regardless of the buffering regulations contained in the Code, but this particular policy is only directed to the Code. Petitioners did not show that the Code does not contain buffering requirements. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.4.9, which requires a vegetated upland buffer for any waterfront development. The Petitioners’ evidence on this issue was insufficient to establish that the required buffer could not be provided. Furthermore, the policy directs the County to adopt regulations to establish the buffer requirements. Petitioners did not show that such regulations were not adopted by the County. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.6.1, which encourages infill within the designated urban service areas of the County. Water-dependent uses must be located where the water is located. Therefore, infill policies cannot be applied to water-dependent uses in the same manner as with other land uses. Although the availability of necessary urban services is still a relevant inquiry, Petitioners did not present evidence on this point. Consistency with Rule 9J-5 Petitioners contend that the amendment is inconsistent with Florida Administrative Code Rule 9J-5.003(23), which defines the term “compatibility”; Rule 9J-5.006(3)(b)3., which encourages the reduction or elimination of inconsistent uses; Rule 9J-5.006(3)(c)2., which requires that comprehensive plans provide for “compatibility of adjacent land uses”; and Rules 9J- 5.006(5)(h)6. and 8., which require that amendments be reviewed for compatibility and “functional relationship” with adjacent land uses. The term “compatibility” is defined in Florida Administrative Code Rule 9J-5.003(23) as: [A] condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. A definition is not a regulation that requires compliance. A definition simply shows the intended meaning for a term used in a regulation. Therefore, a comprehensive plan amendment cannot be inconsistent with a definition. Florida Administrative Code Rule 9J-5.006(3)(b)3. requires the future land use elements of comprehensive plans to contain one or more objectives that encourages the elimination or reduction of uses inconsistent with the community’s character and future land uses. This rule addresses existing non- conforming uses. The Property is no longer being used in a manner that is inconsistent with the community’s character. Therefore, there is no inconsistent use of the Property that needs to be reduced or eliminated. Florida Administrative Code Rule 9J-5.006(3)(c)2. requires the future land use element of a comprehensive plan to contain one or more policies that provide for compatibility of adjacent land uses. It was found, above, that the rural residential neighborhood adjacent to the Property would be negatively impacted by boat building and boat repair uses of the Property. The amendment is incompatible with the surrounding rural residential neighborhood. Florida Administrative Code Rules 9J-5.006(5)(h)6. and relate specifically to the analysis of whether an amendment fails to discourage the proliferation of urban sprawl. Because Petitioners did not raise urban sprawl as an issue, they cannot claim inconsistency with these rules. Petitioners contend that the amendment is inconsistent with Section 163.3177(8), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2), which require that an amendment be based on relevant and appropriate data and analysis. Petitioners believe that there is no demonstrated need for additional industrial uses in the County. Petitioners’ argument and evidence on the issue of need failed to take into account the water-dependent use that is proposed. Petitioners’ computations to show that there are substantial acres of unused industrial lands in the County fails to address the question of whether there is a need for additional water-dependent land uses.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order determining that the amendment adopted by Putnam County through Ordinance 2009-23 is not in compliance. DONE AND ENTERED this 24th day of December, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2009.
The Issue The issues are whether the City of Jacksonville's (City's) Ordinance No. 2008-628-E adopted on September 9, 2008, which remediates Ordinance No. 2007-383-E, is in compliance, and whether Chapter 2009-96, Laws of Florida, renders this proceeding moot, as alleged by Petitioner, Dunn Creek, LLC (Dunn or Petitioner).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Petitioner is the owner of a vacant 89.52-acre parcel of property in Council District 11, which is located in the northern reaches of the City. More specifically, the property lies around four or five miles east of the airport and Interstate 95, just south of Starratt Road between Dunn Creek Road and Saddlewood Parkway, and within a "couple of miles of Main Street," a major north-south State roadway. Dunn submitted oral and written comments to the City during the plan amendment process. As such, it is an affected person and has standing to participate in this proceeding. The City is a local government that is subject to the requirements of Chapter 163, Florida Statutes. It adopted the amendments being challenged by Dunn. Except for the challenged plan amendment, the City's current Plan is in compliance. Intervenor Britt owns property and resides within the City. The parties have stipulated to the facts necessary to establish that she is an affected person and therefore has standing to participate in this matter. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the City. Background On May 14, 2007, the City adopted Ordinance No. 2007- 383-E, which amended the FLUM by changing the land use category on Dunn's property from LDR to RPI, which would allow an increase in the density and intensity of use on the property. (The LDR land use allows up to seven dwelling units per acre, while RPI is a mixed-use category that allows up to twenty dwelling units per acre if built to the maximum development potential.) On July 9, 2007, the Department issued its Notice and Statement of Intent finding that the Ordinance was not in compliance on the ground the map change was not supported by adequate data and analysis to demonstrate that the City would achieve and maintain the adopted LOS standards for the roadways within its jurisdiction. The Department further determined that the traffic study submitted by the City was not based on the maximum development allowed under the RPI category. On August 1, 2007, the Department initiated this case by filing a Petition, which tracked the objections described in its Notice and Statement of Intent. The City, Dunn, Department, and Britt later entered into settlement discussions. As part of the settlement discussions, Dunn submitted a revised traffic study and coordinated with other applicants for map changes to perform cumulative traffic impact studies. The parties eventually entered into a proposed settlement agreement which would limit development of the property to 672 condominiums/townhomes and 128,000 square feet of non-residential uses through an asterisk to the Plan. See Petitioner's Exhibit 1, p. 25. Also, the proposed settlement agreement noted that the data and analysis confirmed that certain future road improvements in the Capital Improvement Element (CIE) of the Plan would offset the traffic impacts of the new RPI land use. These were improvements to the East-West Connector (U.S. Highway 17 to New Berlin Road) and Starratt Road. Id. Finally, Dunn agreed to pay $4.3 million in "fair share money" to the City to offset the proportionate share of the development's traffic impacts. See Petitioner's Exhibit 6. The proportionate share agreement was intended to match the trip count anticipated from the RPI development. On September 3, 2008, the proposed settlement agreement and remedial amendment were presented to the City Council Land Use and Zoning Committee (Committee) for approval as Ordinance Nos. 2008-627 and 2008-628, respectively.3 At that meeting, the Committee heard comments from several members of the public who opposed the amendment, a Dunn attorney, and the City's Director of Planning and Development, William B. Killingsworth. The City Council member who represents District 11 and is a member of the Committee also spoke in opposition to the proposal. Based primarily upon data in a new traffic study prepared on August 28, 2008, by a member of Mr. Killingsworth's staff, and the opposition of the District 11 Council member, the Committee voted unanimously to revise the proposed settlement agreement and remedial amendment by changing the land use designation on the property back to LDR, its original classification. The revised settlement agreement was approved by Ordinance No. 2008- 627-E, while the remedial amendment changing the land use was approved by Ordinance No. 2008-628-E. The two Ordinances were then forwarded to the full City Council, which approved them on September 9, 2008. The revised settlement agreement was later executed by the City, Department, and Britt, but not by Dunn, and is known as the Sixteenth Partial Stipulated Settlement Agreement. See Petitioner's Exhibit 2. The essence of the revised agreement was that by changing the land use back to its original designation, the potential adverse impacts to transportation facilities would be resolved. Id. The remedial amendment package was transmitted by the City to the Department for its review. On December 18, 2008, the Department issued a Cumulative Notice of Intent to Find Ordinance Nos. 2007-383-E and 2008-628-E in compliance. On January 8, 2009, Dunn filed a Motion to Amend Petition to Intervene pursuant to Section 163.3184(16)(f)1., Florida Statutes. Because Dunn objected to the revised settlement agreement and challenged the remedial amendment, the parties were realigned, as reflected in the style of this case. On June 1, 2009, Senate Bill 360, engrossed as Chapter 2009-96, Laws of Florida, became effective. That legislation amends Chapter 163, Florida Statutes, in several respects. Among other things, it designates the City as a Transportation Concurrency Exception Area (TCEA).4 See § 163.3180(5), Fla. Stat. The new law also provides that plan amendments for land uses of a local government with a TCEA are deemed to meet the LOS standards for transportation. See § 163.3177(3)(f), Fla. Stat. Therefore, after a TCEA becomes effective, the Department no longer has the authority to review FLUM amendments in the TCEA for compliance with state-mandated transportation concurrency requirements. However, Senate Bill 360 contains a savings clause, which provides that "this subsection does not affect any contract or agreement entered into or development order rendered before the creation of the [TCEA] except as provided in s. 380.06(29)(e)." See § 163.3180(5)(f), Fla. Stat. The City, Department, and Britt contend that this provision "saves" the Sixteenth Partial Stipulated Settlement Agreement executed by them in November 2008, and that the Department still retains jurisdiction to consider the remedial amendment. Conversely, Dunn contends that the savings clause does not apply to the revised agreement, that the Department no longer has jurisdiction to review the challenged amendment, that the remedial amendment was not authorized, and that because the remedial amendment never became effective, the Department's Petition should be dismissed as moot. Objections to the Remedial Amendment Besides the contention that the proceeding is moot, Dunn raises three issues in its challenge to the amendment. First, it contends that the amendment is not supported by relevant and appropriate data and analysis related to traffic impacts and therefore is not in compliance. Second, Dunn contends that the amendment does not address the concerns raised in the Department's original Notice and Statement of Intent regarding the City's achieving and maintaining the adopted LOS of affected roadways. See § 163.3184(16)(f)2., Fla. Stat. Third, Dunn contends that due to procedural errors in the amendment adoption process, it was unduly prejudiced. Data and analysis Because almost all of the unresolved FLUM amendments in this case involved "traffic issues," on September 4, 2007, a Department employee, Melissa Hall, sent an email to counsel for a number of applicants, including Dunn, describing "what the department would be looking for in terms of traffic analysis." See Petitioner's Exhibit 12, p. 1. The email required those applicants to submit revised traffic studies. Id. Among other things, the applicants were advised that the revised traffic impact analysis for each amendment had to use "a professionally acceptable traffic impact methodology." Id. Dunn followed the requirements of the email in preparing its revised traffic study. At the time Ordinance No. 2007-383-E was adopted, based on total background traffic, which includes existing traffic plus reserve trips for approved but not-yet-built developments, eight road segments in the study area already failed to meet LOS standards. (LOS E is the adopted passing standard on those roadways.) The study area includes affected roadways within a two-mile radius of the boundaries of the proposed project site where project traffic consumes more than one percent of the service volume. If the Dunn project is built, six segments impacted by the development will continue to fail. According to the City's expert, as a general rule, an applicant for a land use amendment is not required to bring a failing segment back up to its adopted LOS. Rather, it is only required to pay its proportionate share of the improvements for bringing it up to compliance. The unique aspect of this case is that the City has simply reclassified the property back to what it was, LDR, when Ordinance No. 2007-383-E was adopted. At that time, the Plan was in compliance. In response to Dunn's contention that Ordinance No. 2008-628-E is not supported by relevant and appropriate data and analysis, the City, joined by the Department and Britt, first contends that, given the unique circumstances presented here, no data and analysis were required. Alternatively, it contends that there are sufficient relevant and appropriate data and analysis to support maintaining the LDR land use designation. The data and analysis include the traffic study prepared by Dunn's consultant in October 2007, the additional traffic analysis performed by the City staff just before the Committee meeting, and the testimony provided at the Committee meeting on September 3, 2008. At hearing, the City first pointed out that the RPI designation was never determined to be in compliance, Ordinance No. 2007-383-E never became effective, and the property has remained LDR throughout this proceeding. See § 163.3189(2)(a), Fla. Stat. ("[p]lan amendments shall not become effective until the [Department] issues a final order determining the adopted amendment to be in compliance in accordance with s. 163.3184(9), or until the Administration Commission issues a final order determining the adopted amendment to be in compliance"). Therefore, the City takes the position that Ordinance No. 2008- 628-E did not need to be supported by data and analysis because the LDR category was the land use designation on the property at the time of the adoption of Ordinance No. 2008-628-E. In the same vein, it argues that the remedial amendment is the equivalent of a repeal of the prior ordinance (2007-383-E), which would not require any data and analysis support. While at first blush these arguments appear to be plausible, the City could not cite any provision in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-55 that relieves a local government from the requirement that a plan amendment be supported by data and analysis. The City also argues that even if Ordinance No. 2008- 628-E is deemed to be a change in the land use (from LDR to LDR), the net impact of the change would be zero. This argument is based on the accepted testimony of Mr. Killingsworth, who stated that the City, Department, and Florida Department of Transportation (FDOT) agreed upon a methodology which entitled the City to give "credit" for uses permitted under the existing land use category.6 Under that methodology, the City subtracts the number of trips that the existing land use (LDR) generates from the additional trips generated by the proposed land use (LDR). Therefore, the net transportation impact of a change from LDR to LDR, in effect, would be zero. The methodology is described in Petitioner's Exhibit 15, a memorandum authored by Mr. Killingsworth and sent on October 4, 2007, to Dunn and other parties seeking map changes in this case. The memorandum stated that the methodology described therein was "developed in coordination [with] FDOT District 2" and "is the suggested methodology for use in determining traffic impacts of proposed land uses for the City." See Petitioner's Exhibit 15, p. 1. Mr. Killingsworth could not cite any provision in Chapter 163, Florida Statutes, or Chapter 9J-5 allowing for such a credit for traffic generated by a prior permitted land use in the data and analysis required for a FLUM amendment. At the same time, however, Petitioner could not cite any rule or statute that prohibits the Department from allowing this type of methodology when deemed to be appropriate. Even though it differed from the methodology described in Ms. Hall's earlier email by allowing credit for the existing land use, it was nonetheless "a professionally acceptable traffic impact methodology" approved by the Department and FDOT and could be used as data and analysis to support a change back to the property's original land use classification. Therefore, it constitutes relevant and appropriate data and analysis to demonstrate that the net traffic impact of the change in land use from LDR to LDR is zero. The City further argues that if it was required to provide other data and analysis, the traffic impacts of the new ordinance are offset by the two roadway improvements negotiated with the Department in the proposed settlement agreement for Ordinance No. 2008-627. See Finding 7, supra. Based upon the City staff's analysis, which is found in City Exhibit 3, the LDR land use generates less trips than the RPI land use. (This study was prepared a few days before the Committee meeting in response to an inquiry from a Committee member.) More specifically, page 3 of that exhibit reflects that there are 169 less afternoon peak hour trips for LDR than RPI with the development cap of 672 dwelling units and 128,000 square feet of non-residential uses. It is fair to infer, then, that if the proposed mitigation in the original settlement agreement offsets the impacts of the more intense RPI land use, the mitigation also offsets the impacts of the less intense LDR land use. City Exhibit 3 is a comparative calculation of the difference in vehicle trips generated by development of the property under the LDR category approved by Ordinance No. 2008- 628-E and the development of the property under the RPI category approved by Ordinance No. 2007-383-E. Dunn points out, however, that the exhibit does not show how the trips generated are distributed on affected roadways or how those trips, as they may be distributed, affect LOS of any roadways. Despite the fact that the data in Exhibit 3 are limited to trip generation data, and establish no facts relating to the LOS of affected roadways, they support a finding that more trips will be generated under the RPI designation than the existing LDR designation. Also, they provide further support for a finding that if the proposed road improvements offset the impacts of the RPI use, the mitigation will offset the impacts, if any, of the original LDR use. For data and analysis relating to the LOS of affected roadways, the City, joined by the Department and Britt, rely upon a traffic study performed by Dunn's traffic consultant, King Engineering Associates, Inc. (King). That firm prepared a transportation analysis dated November 19, 2007, for the purpose of supporting a mixed-use development on the property under the RPI category. See Petitioner's Exhibit 8. This study, however, does not apply to development of the property under the LDR category because it was based upon a mixed-use project which would allow for credit based upon the internal capture of some trips. (In other words, a portion of the new trips will be internal to the site, that is, trips between the residential and commercial land uses on the property.) Because of this, any reference to the King study and proposed mitigation therein was deleted from the revised settlement agreement. In this respect, the study does not support the amendment. The King study addresses impacted roadway segments, existing and background traffic, proposed traffic generated by the development, and LOS for the impacted roadways, as suggested by Ms. Hall in her email. Dunn's traffic engineer established that in the impacted study area, six out of eight roadway links will continue to fall below adopted LOS standards based upon existing traffic and that generated by the RPI development (segments 174, 372, 373, 374, 377, and 543). See Table 4, Petitioner's Exhibit 8. The study also identifies proposed roadway improvements in the vicinity of the project site that are intended to help cure or mitigate the failing standards. See Petitioner's Exhibit 8, p. 12. These improvements are listed in the CIE and will cost around $85 million. A "fair share" agreement has also been executed by the City and Dunn, which requires Dunn to pay more than $4.3 million to offset impacts of the RPI development. Those monies would be applied to improvements in Sector 6.1 (the North Planning District), which includes Starratt Road and the East-West Connector. The agreement notes that this contribution would offset the proportionate share of traffic impacts of the proposed RPI development. Notably, the City has already funded both the widening of Starratt Road and the improvements to the East-West Connector, U.S. Highway 17 to Berlin Road, through the Better Jacksonville Plan. Therefore, even if the Dunn fair share agreement is not implemented, the two improvements will still be made. According to Dunn's engineer, the completion of the four projects listed on page 12 of his traffic study, which are labeled as "mitigation," will not restore or cure any of the LOS failures that now exist on the six impacted segments in Table 4 of the study. However, two of the failing segments (373 and 543) may be "helped" by the projects listed on that page. Dunn's engineer also analyzed City Exhibit 3 and concluded that if the Dunn property is developed as LDR, rather than RPI, there would be potentially one less roadway segment (374) impacted by development, while five other segments would continue to fail. When the proposed mitigation in the King study is factored in, he opined that the East-West Connector may help two other failing segments. He further opined that if LDR development on the property occurs, probably three of the six impacted segments will continue to fail adopted LOS standards. Even so, the improvements identified in the CIE, including those already funded by the Better Jacksonville Plan, should offset the proportionate share of traffic impacts associated with any future LDR development.7 The foregoing data and analysis establish that the LDR land use category generates less traffic impacts than the originally-proposed RPI use; that a change from LDR to LDR should have zero effect in terms of traffic impacts; that even if there are impacts caused by a change back to LDR, the proposed mitigation in the CIE will offset the proportionate share of the impacts associated with any LDR use; that while it differed from other studies, a professionally acceptable traffic impact analysis was used by the City to support the remedial amendment; and that the proposed road improvements are fully funded without having to implement the fair share agreement. Finally, in adopting the amendment, the City has reacted to the data and analysis in an appropriate manner. Does the Remedial Amendment Resolve All Issues? Dunn also asserts that the amendment does not resolve the issues raised by the Department in its Notice and Statement of Intent dated July 9, 2007. Under Section 163.3184(16)(f)2., Florida Statutes, an affected party may assert that a compliance agreement does not resolve all issues raised by the Department in its original notice of intent. The statute allows an affected party to then address those unresolved issues in the realigned proceeding. In this case, Petitioner asserts that the Department's original objection that the change in land use would result in a lowering of the LOS in the study area was not addressed by the remedial amendment. In its Notice and Statement of Intent to find the amendment not in compliance, the Department cited the following rules and statutes as being contravened: Sections 163.3164(32) and 163.3177(3)(b),(6)(a), (8), and (10), Florida Statutes, and Rules 9J-5.005(2)(a) and (c), 9J-5.006(2)(a), (3)(b)1. and 3., 9J-5.016(4)(a)1. and 2., and 9J-5.019(3)(a) through (h) and (4)(b)2. Although these sources of authority were cited in a single generic notice of intent as a basis for objecting to all seventeen map changes, it is assumed that they have equal application to this proceeding. The cited statutes relate to funding of transportation projects and concurrency issues, while the rules relate to data and analysis requirements, concurrency issues, the capital improvement element, and required transportation analyses, all subjects addressed by Dunn at the final hearing. Assuming arguendo that the remedial amendment does not address all of the issues raised in the original notice of intent, Dunn was given the opportunity to fully litigate those matters in the realigned proceeding. Procedural Irregularities Rule 9J-5.004 requires that the City "adopt procedures to provide for and encourage public participation in the planning process." See also § 163.3181(1), Fla. Stat. ("it is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible"). Dunn does not contend that the City failed to adopt the required procedures. Rather, it contends that the City did not follow those procedures during the adoption of the remedial amendment. More specifically, prior to the Committee meeting, Dunn says it spent "hundreds of thousands of dollars on top of the millions that [it] had spent previously, working for fourteen months in conjunction with the City and [Department]" so that the parties could resolve the Department's objections. Dunn argues that it was unduly prejudiced by the last-minute revisions made by the Committee and City Council, and that it did not have an adequate opportunity to respond. Dunn points out that a City Planning Commission meeting was conducted before the Committee meeting, and that body unanimously recommended that Ordinance Nos. 2008-627 and 628 be approved. It further points out that when the Committee met on September 3, 2008, the proposed revisions to the settlement agreement, the accompanying remedial amendment, and the new traffic data were not discussed until after the public comment portion of the meeting was closed. (The transcript of that meeting reflects, however, that after the new revisions and traffic study were raised, Dunn's counsel was briefly questioned about Dunn's traffic study and the density/intensity of the project. Also, according to Mr. Coe, a copy of the City's newly-prepared traffic study was given to a Dunn representative just before the Committee meeting.) For both public meetings, the City's published notices indicated that the purpose of the meetings was to consider the proposed revised settlement agreement and remedial amendment allowing a cap on the development of the RPI property through the use of an asterisk, as reflected in Ordinance Nos. 2008-627 and 2008-628. See Petitioner's Exhibits 16 and 17. Dunn contends that it had insufficient time between the Committee meeting on September 3, 2008, and the final City Council meeting on September 9, 2008, in which to review and evaluate the new traffic information and respond to the comments of the Committee member who supported the revisions. It also points out that, like other members of the public, Dunn's attorney was only given three minutes to present comments in opposition to the revised agreement at the City Council meeting on September 9, 2009. Notwithstanding any procedural errors that may have occurred during the City's adoption process, Dunn received notice and attended both the Committee and City Council meetings, it presented written and oral objections to the revised plan amendment prior to and at the City Council meeting on September 9, 2008, and it was given the opportunity to file a petition to challenge the City's decision and present evidence on the revisions at the hearing in this case. Savings Clause in Senate Bill 360 In support of its position that the matter is now moot, and that the savings clause in Senate Bill 360 does not "save" the revised settlement agreement executed by the City, Department, and Britt, on November 10, 2008, Dunn submitted extrinsic evidence to show the Legislature's intent in crafting a savings clause, which include four separate analyses by the Legislative staff (Appendices A-D); an article authored by the Bill's Senate sponsor (Senator Bennett) and published in the St. Petersburg Times on May 23, 2009 (Appendix E); a similar article authored by the same Senator and published in the Sarasota Harold-Tribune on June 11, 2009 (Appendix F); a seven-page letter from Secretary Pelham to Senator Bennett and Representative Murzin dated July 23, 2009, concerning the new law and a two and one-half page summary of the bill prepared by the Department (Appendix G); a power point presentation for the Senate Community Affairs Committee on October 6, 2009 (Appendix H); and an article published in the October 2009 edition of The Florida Bar Journal (Appendix I). The Florida Senate Bill Analysis and Fiscal Impact contained in Appendix A was prepared on February 17, 2009, and does not reference the relevant savings clause. A second Senate Bill Analysis and Fiscal Impact contained in Appendix B and prepared on March 19, 2009, merely acknowledges that the legislation includes a savings clause but provides no further explication. See App. B, p. 9. Appendix C is the Florida House of Representatives 2009 Session Summary prepared in May 2009, while Appendix D is a Summary of Passed Legislation prepared by the House of Representatives Economic Development and Community Affairs Policy Council on an undisclosed date. Neither document addresses the issue of what types of agreements were intended to be saved. Appendices E through I are guest newspaper columns, correspondence, a power point presentation, and an article in a professional journal. None are authoritative sources of legislative intent.
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. 2008-628-E, which remediates Ordinance No. 2007- 383-E, is in compliance. DONE AND ENTERED this 28th day of December, 2009, in Tallahassee, Leon County, Florida. S D. 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 28th day of December, 2009.
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
The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the 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 finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, 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 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue The issue for determination is whether Seminole Raceway, as proposed in Charles and Linda Wimberlys' Site and Development Plan and approved with conditions by the Leon County Development Review Committee (DRC), is consistent with the requirements of the 2010 Tallahassee-Leon County Comprehensive Plan (Comprehensive Plan) and is a permissible land use under applicable provisions of Chapter 10, Leon County Code (the Code).
Findings Of Fact Parties The Department is the state land planning agency charged with the responsibility of reviewing plans and plan amendments pursuant to Chapter 163, Part II, Florida Statutes, also known as The Local Government Comprehensive Planning and Land Development Regulation Act (Act). Petitioner Loren E. Hamm and Petitioners Dorothy K. Bicket as Trustee for the Dorothy K. Bicket Trust, M.M. Bicket as Trustee for the M.M. Bicket Trust, and John Hiram Bicket as Trustee for the M.M. and Dorothy K. Bicket Trust, all own properties within the boundaries of the County that were affected by the remedial plan amendments. Petitioner Hamm submitted oral objections concerning the plan amendment during the review and adoption proceedings. Petitioners Bicket did not submit oral or written objections concerning the plan amendment during that process. All Petitioners have alleged inadequate notice of the remedial amendments and the consequential proposed land use changes. The County is a local government required to adopt a revised comprehensive plan pursuant to Sections 163.3164(12) and 163.3167, Florida Statutes. On June 7, 1989, the County adopted a local comprehensive plan with a year 2010 planning horizon. For purposes of this recommended order, the findings and conclusions discussed herein address specifically the property owned by Petitioner Loren E. Hamm. Background The County is located in rural central Florida. The County encompasses approximately 312,000 acres. The County is bounded on the north by Citrus County, on the east by Sumter County, on the south by Pasco County, and on the west by the Gulf of Mexico. The county seat is the City of Brooksville. There are two arterial roadways at the heart of the issue in this proceeding. They are U.S. 19, a 4-lane divided highway running north and south in western Hernando County and S.R. 50 a state highway running east and west in central southern Hernando County. S.R. 50 features existing strip commercial development. Petitioner Hamm owns approximately 431 acres of undeveloped land along S.R. 50 due west of the Oak Hill Hospital and due east of the intersection of S.R. 50 and U.S. 19 at the City of Weeki Wachee. Petitioner Hamm's property is a vacant parcel of sandy soil, partially vegetated by pine trees and scrub oaks and dotted by small lakes or "sink holes". Mr. Hamm has a forest green belt tax exemption on his property. According to the 1989 Hernando County Comprehensive Plan, the land use classification for Mr. Hamm's parcel was a combination of residential, commercial and light industrial. Pursuant to the remedial amendments, Mr. Hamm's property was designated on the FLUM as a combination of residential and commercial use with a designated commercial node overlapping Mr. Hamm's property. At the hearing, Mr. Hamm was not aware of the acreage of his parcel which had been designated as a partial commercial node on the FLUM adopted on November 14, 1990, nor was he aware of the amount of commercial designation available for his property pursuant to the prior FLUM adopted June 7, 1989. Under the 1989 plan Mr. Hamm may have been eligible for a category of development called urban buildup which was a mix of urban land uses. At that time, he could have potentially developed 80 to 90 acres of the subject land as commercial development. Mr. Hamm could have developed his property under a commercial land use designation pursuant to the June, 1989, comprehensive plan; similarly, he can also develop a portion of his property for commercial use under the November, 1990 plan amendments, depending on the extent to which the commercial node designated on the FLUM falls on Mr. Hamm's property. Approximately 47 acres of the commercial node falls on Mr. Hamm's property and may be developed specifically as commercial land use. He may also develop office/professional uses in addition to the 47 acres of the general commercial, roughly an additional 50 acres. Utilization of the commercial node on Mr. Hamm's property may afford up to 90 acres available for commercial development under the November, 1990 comprehensive plan amendments, if development pursuant to the office/professional designation is included. Previously, Mr. Hamm was able to develop an area 1000 feet deep across the front of his property amounting to approximately 100 acres under the June, 1989 comprehensive plan. The Issue of Adequate Notice Hernando County undertook a fairly extensive citizen's participation program for development of its comprehensive plan and appointed five task forces to give citizen input on various aspects of the plan over a period of several years. Hundreds of meetings involving the task force were held, which meetings were open to the public and in which the public participated. The County duly noticed its public hearings to consider and adopt the remedial amendments by an advertisement published in a newspaper of general paid circulation in the County and of general interest and readership in the community, not one of limited subject matter. The advertisement was a one quarter page ad in a standard size. The advertisement did not appear in the portion of the newspaper where legal notices and classified advertisements appear. The County advertised its notices of public hearings in the Brooksville Sun Journal, a local newspaper of general circulation in the County that it had used for such advertisements for a period of fifteen to seventeen years. The newspaper has since gone out of business. No affected person was provided individual notice of Plan workshops and hearings. The County advertised notice of the local planning agency meeting held May 10, 1990, the transmittal hearing by the Board of County Commissioners and the public adoption hearing of the Board of County Commissioners in the Brooksville Sun Journal. Notably, approximately 1200 notices of zoning hearings have been published in the Sun Journal. None of these notices have been previously determined to be inadequate. Mr. Hamm appeared at, participated in and addressed the Board of County Commissioners at the duly noticed public hearing held November 14, 1990. Representatives of Mr. Hamm were also present at the public hearing and were afforded the opportunity to address the Board of County Commissioners regarding the remedial amendments and Mr. Hamm's property in relation thereto. Representatives of Mr. Hamm present at the hearing included an attorney, a real estate appraiser and a land use consultant. At the public hearing of the Board of County Commissioners at which the remedial amendments were considered, no new, independent, or additional data and analysis regarding the land use classification from Mr. Hamm's property was presented for consideration. Land Use Compliance Issues The following four issues form the basis of Petitioners' claims that the Hernando County Comprehensive Plan is not in compliance: Failure to coordinate future land uses with available facilities and services thereby encouraging urban sprawl; Promotion of strip commercial development along State Highway System; The quantity and quality of data and analysis relative to roadway impacts expected from the strip commercial land along S.R. 50 near Oak Hill Hospital and methodology utilized by the County; and Quantity and quality of data analysis relative to the number and location of the commercial nodes near U.S. 19 and S.R. 50 as reflected in the commercial nodes maps and the methodology utilized by the County. The manner and extent to which Mr. Hamm can develop his property. In the FLUE, the Hernando County Comprehensive Plan contains the following goals, objectives and policies relative to the designation of commercial land use on the FLUM: 1/ POLICIES OBJECTIVE E: TO PROVIDE FOR MODERATE TO HIGH DENSITY RESIDENTIAL DEVELOPMENT IN SUITABLE AREAS. POLICY: 1 Establish a Residential Land Use Category where the land uses allowed are: Single family residential densities up to 5.4 units/acre, resort residential, and ancillary land uses such as recreation, churches, and community centers. Land uses which can be located in this category with performance standards being met include multi-family housing up to 12.5 units/acre, rural residential, neighborhood commercial, commercial extending from commercial nodes with a function frontage road, unless it is determined that wetlands or existing development make frontage road extension unfeasible, offices and professional, schools, hospital and minor public facilities. OBJECTIVE K: PROVIDE FOR THE DEVELOPMENT OF HIGH QUALITY COMMERCIAL AREAS TO MEET THE CURRENT AND PROJECTED NEEDS OF HERNANDO COUNTY RESIDENTS WHILE ENSURING AN ORDERLY AND EFFICIENT PATTERN OF LAND USES AND PROTECTING THE COUNTY'S TRANSPORTATION NETWORK. POLICY 1: Establish a Commercial Land Use Category, in which land uses such as commercial, recreation, office and professional, minor public facilities, and minor institutional are allowed. Residential units may be allowed. POLICY 2: Prior to 1991, the County shall amend its Land Development Regulations to include specific criteria for neighborhood commercial, general commercial, community commercial, regional commercial, and any subcategories thereof, addressing permitted uses, bulk regulations, buffer requirements, performance standards, signage, aesthetics, parking requirements and special exceptions or other mechanisms to allow flexibility. POLICY 3: New commercial development shall be initiated within commercial nodes, as indicated on the adopted Future Land Use Map Series, except for Specialty Commercial, Neighborhood Commercial, and appropriate infill areas. POLICY 4: The Landscape Ordinance shall require the buffering of the negative visual impacts of commercial development through the use of landscaping, screening, regulation of signs, planting of trees and where feasible, the preservation of natural vegetation. POLICY 5: Where commercial development is proximate to residential uses, ordinances and land use approval conditions shall require that anticipated negative impacts shall be mitigated to the extent practicable by the commercial development, including noise, glare, dust, noxious fumes, odors, light, increased traffic, and visual discontinuity. POLICY 6: The Land Development Regulations shall be written to encourage planned development zoning along arterial roads or in multiple land use developments to ensure compatible land uses and maximize coordination of facilities and access. POLICY 7: The County shall establish standards to promote the integration of pedestrian traffic within and between commercial developments and adjacent residential areas. POLICY 8: To the extent feasible, higher intensity commercial uses will be buffered from residential areas by lower intensity commercial, office and professional, multi-family or other appropriate land uses. These "steps or intensity" will be criteria within land use approval process. POLICY 9: In areas where existing residential usage is expected to transition into commercial, the initial commercial land uses approved shall generally be of lower intensity. COMMERCIAL NODES OBJECTIVE L: HERNANDO COUNTY WILL MANAGE AND DIRECT COMMERCIAL DEVELOPMENT THROUGH THE DESIGNATION OF COMMERCIAL NODES. POLICY 1: Commercial development shall be managed through a classification into categories of commercial node, established primarily by locational factors POLICY 2: Land Use Regulations shall be adopted which further describe land uses allowed in each commercial node classification, and shall include any sub-sets of zoning districts, performance standards, exceptions or other regulations reasonably required to manage commercial development activity. POLICY 3: Commercial nodes shall be classified as neighborhood commercial, community commercial, general commercial, and regional commercial, with the following minimum locational criteria: Neighborhood Commercial Nodes May be located in the Residential or Rural Future Land Use categories, but because of size will not require mapping on the Future Land Use Map Series; Will have a maximum node size of 5 acres; Will not be located in Conservation areas or environmentally sensitive areas; Will be located on collector or arterial roads except where proposed as part of an integrated, mixed-use planned unit development; Will not degrade the proper functioning of the adjacent roads below the established levels of service; Will be proximate to population areas to support the proposed use; Will not compromise the integrity of residential areas. Community Commercial Nodes Will be located in areas designated on the Future Land Use Map Series as locations appropriate for nodal commercial development; Will be located proximate to the intersection of two roadways of a status of collector road or greater; Full median cuts will generally not be allowed any closer then 660 feet from the intersection to maintain the proper functioning of the intersection; Will be located on the fringe, not the interior, of the residential areas; May be exempt from the criteria of 1, 2, and 4, if proposed as part of or proximate to an integrated, mixed-use planned development project; Will not compromise the integrity of the residential areas; Will generally range from 40-60 acres in size. General Commercial Nodes Will be located in areas designated on the Future Land Use Map Series as appropriate for nodal development; Will be located proximate to the intersection of an arterial highway and a second road of at least collector status; Full median cuts will generally not be any closer than 1,320 feet on arterials and 660 feet on collectors for the intersection to maintain the proper functioning of the intersection; Will generally range from 50 to 100 acres in size; Will be located within three to five miles of population areas to support the size and intensity of the development proposed; Will be of a design which does not compromise the integrity of adjacent uses of close proximity; May be exempted from the criteria of 1 and 2, if proposed as part of or proximate to an integrated, mixed-use planned development project. Regional Commercial Nodes Will be located proximate to the intersection of two arterial roadways; Will have a minimum node size of 80 acres; Will be of a design which does not compromise the integrity of adjacent uses of close proximity; Full median cuts will generally not be any closer than 1,320 feet from the intersection to maintain the proper functioning of the intersection. POLICY 4: Development in commercial nodes shall provide for extension of the County's frontage road network on arterial roadways. POLICY 5: In order to encourage compact commercial development and maintain the viability of adjacent roadways, commercial development can only extend outward from commercial nodes where there is a frontage road connected to the commercial node, unless it is determined that wetlands or existing development make frontage road extension unfeasible. POLICY 6: Commercial development in nodes will be encouraged to utilize unified surface drainage plans, unified landscaping plans, and unified signage criteria. POLICY 7: Prior to the issuance of building permits within the commercial nodes on U.S. 19, north of S.R. 50, an access management plan will be developed. POLICY 8: Media cuts for commercial nodes on U.S. 19 north of S.R. 50 will be limited to one per quadrant unless it can be demonstrated to the Florida Department of Transportation (FDOT) that additional cuts will result in an improved traffic flow. POLICY 9: The access management plan will provide for interconnection between the commercial activities and residential areas. STRIP COMMERCIAL DEVELOPMENT OBJECTIVE N: LIMIT AND MANAGE STRIP COMMERCIAL AND INFILL COMMERCIAL AREAS SO AS TO IMPROVE TRAFFIC CIRCULATION AND VISUAL QUALITY. POLICY 1: Strip Commercial will only be allowed along commercial corridors which have significant existing commercial development, remaining parcels are generally zoned commercial and commercial development is expected to continue. POLICY 2: Expansion of the existing strip commercial areas shall not be allowed except for appropriate infill commercial development. POLICY 3: The County shall not permit the creation of any new strip commercial areas during the planning period. POLICY 4: Infill commercial development can occur only within the strip commercial areas as described in Policy 1. POLICY 5: Where practicable, the County shall encourage the redevelopment of existing strip commercial areas through the designation of commercial nodes in locations consistent with the criteria as found in Objective L. POLICY 6: The County shall encourage the redevelopment of older strip commercial areas in locations consistent with the Future Land Use Map. POLICY 7: Regulations shall be prepared to address the special needs of these corridors such as, additional setbacks, buffers, landscaping requirements, access limitations, and frontage roads. * * * In its compliance review, the Department considered the amount of commercial land use along the State Highway System. The Department's analysis centered on the fact that the entire length of U.S. 19 and S.R. 50 had been designated as a commercial land use in the 1989 plan and would negatively impact the level of service on a State Highway System, a primary concern of the Department. Because of the relationship of the commercial and residential land uses along and in proximity to the State Highway System, the Department concluded that the commercial designations proposed on the June 1989 FLUM would have adverse impacts on the State Highway System particularly along U.S. 19, S.R. 50 and U.S. 98. The "ORC Report" dated September 21, 1990, identifies the Department's concerns for the commercial land use designations on the FLUM. The County responded to the Department's ORC Report and attempted to reduce the allocation of commercial in the County, particularly along U.S. 19, by reducing the amount of commercial nodes from the proposed land use map to the adopted land use map. The actual placement of the nodes on the adopted map was a local decision by the Board of County Commissioners. Strip vs. Node Commercial development The existing plan allows expansion and extension of commercial nodes. The residential land use category in the plan amendment allows for professional office use in the residential land use category. A commercial node is a center of commercial development generally located at major intersections. It is a concentrated interrelated commercial development pattern and should be designed to serve a much larger area than just the node itself. Commercial strip development involves a series of commercial developments strung along the highway system. It is basically a linear type of development activity that is frequently not well interrelated to other surrounding land uses. Planners will differ as to which is the preferable approach for commercial land use designation, a commercial node or a commercial strip. Strip commercial development is less compact, less interrelated, less coordinated. It can be more difficult to implement access control mechanisms and more difficult to implement steady control. The County selected the use of commercial nodes on U.S. 19 north of the City of Weeki Wachee to serve residential development shown on the Future Land Use Map. A number of the nodes correspond with historic developments that are in that area as well as several developments that were platted in the early 1970's. A couple of the nodes correspond with major intersections with U.S. 19. Predominately, either intersection criteria or existing historic development approvals were the criteria used to select the placement of the commercial nodes along U.S. 19. Appropriate methodologies were used in selecting the placement of the commercial nodes along U.S. 19. Commercial nodes were chosen by the County, as opposed to linear strip commercial land use designations in the vicinity of the intersection of S.R. 50 and U.S. 19 in order to reduce the amount of commercial development, specifically strip commercial development. The County elected to let existing strip commercial development remain as strip commercial, with opportunities for infill, and in other areas the County used nodes for its commercial development activities, since nodes give a more compact development pattern. Strip commercial can result in "bad" commercial areas. These commercial areas have numerous access points onto a road and inhibit the flow of traffic, possibly resulting in increased accidents and reduced transportation time from one point to another. Strip commercial development in these instances is not planned and is not appropriately related to the roadway facility. Strip commercial development is also a contributor to urban sprawl. The use of the commercial nodes along S.R. 50 and U.S. 19, as reflected in the 1990 Plan Amendment, help to reduce concerns regarding promotion of urban sprawl. The half node of commercial designated in the area of Mr. Hamm's property can be developed in a manner that is functionally related to the Oak Hill Hospital which is nearby. No new or independent data and analysis was offered at the hearing to support a designation of commercial land uses along S.R. 50 or U.S. 19 preferable to that designated by the County in its comprehensive plan amendments, nor was any such data and analysis provided to show that the County's commercial land use designation in this area is not in compliance or otherwise unsupported. Nodal commercial development is generally a good concept, provided the location of those nodes make planning sense versus the use of infill development of strip commercial areas. In that regard, a distance of 2.3 miles (approximate distance from the northerly end of the strip commercial designation on U.S. 19 and the westerly edge of the strip commercial designation along S.R. 50) is a significant difference or gap such that extension of strip commercial development should not be classified as infill development. The total amount of commercial land use in the County (consisting of strip commercial, the opportunity for infill plus the assignment of commercial nodes) meets the needs for commercial land use for the projected population of the County within the planning time frame. Infill An important consideration in the location of strip commercial development for determining whether a FLUM complies with Rule 9J-5, Florida Administrative Code, is whether the commercial development as designated is existing commercial development and whether there are opportunities for infill. The FLUM adopted by the County allows infill of existing strip commercial development along S.R. 50 between C.R. 491 and U.S. 19 and along S.R. 50 south of the City of Weeki Wachee. The opportunity for infill of the existing strip commercial area along S.R. 50 in the vicinity of Oak Hill Hospital is significant. The area of existing strip commercial development to the east of Oak Hill Hospital along S.R. 50 offers anywhere from 50 to 80 percent commercial infill development. Vesting/Nodes Along U.S. 19 The County anticipates that the U.S. 19 corridor will continue to develop as it has to the south through the planning horizon of year 2010. There are a number of projects anticipated in the north U.S. 19 area and the County's analysis of population growth indicates that there will be growth in that area. Additionally, there are commitments to infrastructure and a subregional sewer plant site shown in the area. The estimated 2010 population for the area north along U.S. 19 is approximately 40,000. The placement of the nodes along U.S. 19 was based upon at least one of the following four criteria: construction had commenced and is continuing in good faith; projects were DRI vested under Chapter 380, Florida Statutes; common law vesting; or locational criteria as prescribed in the Hernando County Plan Amendments. It is good planning practice for planners to evaluate vested rights along U.S. 19 in determining the placement of commercial nodes. It is an appropriate planning practice to locate commercial nodes where there exist platted subdivisions. It is a legitimate planning device for a county to direct future development to existing platted subdivisions as opposed to creating new platted subdivisions. The historical development and vested status of the properties were considered by the County in the placement of nodes along U.S. 19. The County recognized certain binding letters as part of the information it used in compiling and adopting the comprehensive plan amendments and the placement of commercial nodes along U.S. 19. Planned infrastructure and public services are available within the 2010 horizon to support the commercial nodes placed along U.S. 19, including the four laning of U.S. 19 arterial, two subregional sewer plants, and waterlines proposed along U.S. 19 to serve development activities. Protecting the Integrity of the State Highway System Section 187.201(20), Florida Statutes sets forth the transportation goal of the State Comprehensive Plan and requires that: Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway or mass transit and other transportation modes. Applicable policies of that goal are set forth in Section 187.201(20)(b), Florida Statutes, and read as follows: Policy 2. To coordinate transportation investments in major travel corridors to enhance system efficiency and minimize adverse environmental impacts. Policy 3. To promote the comprehensive transportation planning process which coordinates state, regional, ad local transportation plans. Policy 9. To ensure that the transportation system provides Florida citizens and visitors with timely and efficient access to services, jobs, markets, and attractions. Policy 13. Coordinate transportation improvements of the state, local, and regional plans. The main purpose of the state highway system is mobility: the timely and safe transportation of people and goods over the roads in an efficient and cost effective manner. Strip commercial adversely affects the operation of the mobility factor on the state highway system. Rule Chapters 14-96 and 14-97, Florida Administrative Code, adopted by the Florida Department of Transportation, regulate the spacing of access points, driveways, and median cuts in order to assist the mobility of people and goods on the state highway system. Development in a linear or strip commercial fashion is counter productive to that effort and is not as efficient or cost effective as the use of commercial nodes along the state highway system. The integrity of the state highway system can be protected through local government comprehensive plans which limit strip commercial development. Linear strip commercial development causes more trips on the highway system and at some point requires roadway widening and increased traffic signalization. Commercial node development allows better system control and management. The over-commercialization of land uses along the state highway system has the potential to adversely or negatively impact the level of services provided by state roads. Alternatively, commercial nodes have less of a adverse impact because the node concept concentrates commercial development in an area where planning controls can be used to mitigate adverse impacts through methods such as limited curb cuts or frontage roads. Generally, effective access management programs help to limit strip sprawl development patterns, maintain the through-carrying capacity of arterial roadways, and enhance the preservation of rural scenic values as development occurs. Curb cuts and access points can be minimized by requiring development to utilize parallel access roads, share existing or new access points, and construct local road networks that provide alternatives to the use of arterial roads. It is essential when employing this technique that the plan and implementing land development regulations require new subdivisions, planned unit developments, and like development to cluster commercial development sites in nodes and to connect their internal roadways to existing local networks so that a grid of alternative travel routes eventually results. Adequate Data and Analysis The data and analysis to support the plan amendments include the following: The Hernando County Future Land Use Map designates segments of U.S. 19 and S.R. 50 for continued commercial strip development. These two sections are located between the Pasco/Hernando County Line and the southern boundary of Weeki Wachee along U.S. 19, and between Oak Hill Hospital Drive and the southern extension of C.R. 491 along S.R. 50. The 2010 network and socio-economic data residing in the Hernando County FSUTMS Transportation Model was utilized to analyze future conditions. The commercial service and total data (the ZDATA2 file) was modified to reflect commercial build-out conditions along U.S. 19 and S.R. 50. The commercial and service data in the Transportation Analysis Zones (TAZ's) along the two corridors were factored up to appropriately represent a 100% build- out scenario. The June 1990 Compliance Agreement between Hernando County and the Department sets forth a level of service (LOS) standard "C" for non backlogged facilities. It is assumed that S.R. 50 and U.S. 19 will not be in a backlogged condition at the end of the planning period. Only two links are projected to exceed LOS "C" urban, one on U.S. 19 just south of the City of Weeki Wachee, and one link of S.R. 50 between the future North South (Suncoast) Corridor and Wiscon Road. In these cases LOS "C" was exceeded by 208 and 251 vehicles/hour respectively. However, exceeding the standard by 4 or 5% is not significant since this amount is well within the tolerance error of the model. That is to say, the error margin of model exceeds the estimated excess volume. Since all of the other affected links maintained service levels of "C" or better, with most links being in the "A" category, it is assumed that the commercial build-out of the subject areas will not adversely impact service volume levels by the year 2010, the end of the current planning period. State Facility Backlog Analysis. The State facilities designated as backlogged in the Traffic Circulation Element of the Hernando County Comprehensive Plan include sections of U.S. 19, S.R. 50, and U.S. 41. Daily and peak hour traffic counts were taken by Hernando County staff on these facilities in the Autumn of 1990. The results of this effort are recorded in Table 3A. As was stated in the previous section, State maintained roads were to be analyzed on the basis of peak hour analysis. The peak hour level of service standard is LOS C. rural. U.S. 41 is in a backlogged condition from Cortez Boulevard (S.R. 50) to Ayers Road. State Road 50 is backlogged from U.S. 19 to Cortez Boulevard to I-75. Jefferson Street (S.R. 50A) is backlogged from S.R. 50 to west boundary of the City of Brooksville to Cortez Boulevard. U.S. 19 south of S.R. 5 to Spring Hill Drive is in a backlogged status in the peak hour given the statistical confidence level of the counts taken. Additionally the segment exceeds the daily LOS threshold standard. Data and analysis to support a comprehensive plan is information about the County that is utilized in the development of the county's plan. Examples include demographic information, population projections, growth trends, and existing land use patterns. Part of the data and analysis supporting the Hernando County Comprehensive Plan was developed through the public participation process. Further, the County through its consultants and its own planning staff furthered that effort with supporting documentation for both the original 1989 plan and the 1990 amendments. The plan is adequately supported by data and analysis gathered by professionally accepted methodology. Also, the plan does not promote urban sprawl. Ultimate Findings The November 14, 1990 amendments to the Future Land Use Map reduced strip commercial development along State Road 50, east and west of Brooksville on State Road 50 in the vicinity of U.S. 19 and U.S. 41 south of Brooksville and on U.S. 19 north of S.R. 50. Additionally, the amendment reduced the amount of residential land use on a county-wide basis. The County reduced the number of commercial nodes along U.S. 19 in conformity to the date and analysis. The Land Use Element contained in the 1990 amendments, including the Future Land Use Map series was created, established, and adopted pursuant to generally accepted planning principles. The goals, objectives, and policies set forth in the Comprehensive Plan Amendment coupled with the data and analysis support the Future Land Use Map series of the adopted amendments. The Plan as a whole serves to discourage the proliferation of urban sprawl. The proof presented fails to show that the 1990 Amendments to the County's Comprehensive Plan are not in compliance with provisions of Chapter 163, Part II, Florida Statutes, the Withlacoochee Regional Policy Plan, the State Comprehensive Plan set forth in Section 187.201, Florida Statutes, and provisions of Rule 9J-5, Florida Administrative Code.
Recommendation Based on the foregoing it is RECOMMENDED that a final order be entered finding the comprehensive plan amendment adopted November 14, 1990 by Hernando County to be in compliance. DONE AND ENTERED this 26th day of February, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1993.
The Issue Whether the small-scale amendment to the Future Land Use Map (FLUM) of the City of St. Petersburg's (the City) Comprehensive Plan (Comprehensive Plan), adopted by Ordinance 739-L (Ordinance) on August 13, 2020, is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2020).1
Findings Of Fact The Parties and Property Petitioner, PGSP, is a membership organization, with 118 members. It is registered with the State of Florida as a not-for-profit corporation located in St. Petersburg, Florida. PGSP's stated mission is to promote healthy urban development throughout St. Petersburg; it was formed to promote development and growth compatible with surrounding neighborhoods. It works with the City and residents to ensure new development is cohesive with existing and planned environmental and infrastructural demands. Respondent, City of St. Petersburg, is a political subdivision of the State of Florida that is subject to the requirements of chapter 163, Part II, Florida Statutes. The subject property is located at 635 64th Street South, St. Petersburg, Pinellas County, Florida (Property). It is owned by Grace Connection of Tampa Bay, Inc., operating as Grace Connection Church (Church). The Church was the applicant for the Amendment at issue but is not a party to this action. The Property is triangular in shape with a total of 4.66 acres. To the north and west, the Property is bounded by Bear Creek, a natural water feature. To the east, the Property is bounded by 64th Street South, a "Collector, City Road." To the south, the Property is bounded by an undeveloped 40-foot right-of-way. A portion of the Property that abuts Bear Creek is located in a Coastal High Hazard Area (CHHA).3 Respondent has not sought changes to the portion of the Property that is within the CHHA. 3 The Property is also within the projected storm surge in Hurricane Evacuation Level "D," which is a Pinellas County emergency management designation, and not a part of the City's Comprehensive Plan. The Property is currently categorized for Neighborhood Suburban (NS-1) zoning (which is separate from its Future Land Use Category). A substantial number of PGSP members live within the City, in close proximity to the Property and allege they will be adversely affected by the concomitant impacts of increased densities in the community as addressed in these proceedings. The Ordinance The Church's application sought to amend the FLUM of the Comprehensive Plan. The application divided the non-portion of the CHHA into three portions and sought to make the following changes to the Future Land Use categories: A PORTION OF THE SUBJECT PROPERTY (APPROX. 4.33 ACRES), FROM I (INSTITUTIONAL) TO RM (RESIDENTIAL MEDIUM); A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.21 ACRES), FROM I (INSTITUTIONAL) TO RU (RESIDENTIAL URBAN); AND A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.04 ACRES), FROM RU (RESIDENTIAL URBAN) TO RESIDENTIAL MEDIUM (RM). On August 13, 2020, the City Council had a public hearing on the Church's appeal of the denial of its application by the Planning Commission. At this hearing, PGSP members submitted oral or written comments, recommendations, or objections to the City. At the August 13 meeting, the City Council adopted the Ordinance. This had the effect of adopting the Amendment and changing the Future Land Use categories to the Property. The Ordinance instituted a small-scale amendment to the FLUM, as defined by section 163.3187(2). Maximum Density Petitioner argues the Ordinance is not "in compliance," as defined in sections 163.3184(1)(b) and 163.3187(4). Specifically, PGSP attacks the Amendment because it does not (1) direct "population concentrations" away from areas designated as a CCHA; (2) provide for compatible land use transitions; and (3) preserve the existing character of the surrounding areas. Each of these claims are either partially or wholly dependent on the increased maximum density for the Property after the Amendment. As such, the threshold issue of density must be addressed. This dispute involves the 4.37 acre that are changed from the Residential Urban (RU) and Institutional land use categories to Residential Medium (RM) made up of approximately 4.33 acres from Institutional to RM and approximately 0.04 acres from RU to RM. The "Institutional" designation allows a density of 12 dwelling units per acre but limits residential use as an accessory to the primary institutional use, which in this case is a church.4 The Church submitted the application for the FLUM amendment because it ultimately seeks to sell the Property for multi-family housing development, which would not be a proper use in an area designated "Institutional." The Future Land Use categories for the area to the north and east of the Property are RU, which have a density of 7.5 units per acre. See Comprehensive Plan Policy LU 3.1A.2. This area is primarily made up of single-family homes. The southern boundary of the property is also the municipal border between St. Petersburg and an unincorporated portion of Pinellas County. This area is governed by the Pinellas County FLUM and Pinellas County Comprehensive Plan. The adjacent property to the south is a mobile home park development which has a residential density of 20.4 units per acre. 4 Pursuant to section 16.10.020.2 of the City's Code, Institutional uses include, "government buildings and grounds, and cemeteries, hospitals, houses of worship and schools." In between the RU and RM categories is a category labeled "Residential Low Medium" (RLM). The RLM category allows low to moderately intensive residential development with a density not to exceed ten dwelling units per acre. See Comprehensive Plan Policy LU 3.1A.3. As stated above, the Ordinance would categorize the portion of the Property at issue as RM. The RM category allows medium density residential development and has a maximum density of 15 dwelling units per acre, with a possible maximum density of 30 dwelling units per acre with the qualification of a density bonus. See Comprehensive Plan Policy LU 3.1A.4. PGSP argues the density of the areas designated as RM by the Ordinance will have a maximum possible density of 30 dwelling units per acre. The City argues the maximum density is calculated using the actual density that can be built in the RM areas. As explained below, the practical allowable density of 15 dwelling units per acre with a Workforce Housing Bonus of six, or 21 dwelling units per acre. Petitioner relies on a "Missing Middle Housing" density bonus allowable in Neighborhood Traditional Mixed Residential (NTM) zoning category. This bonus allows up to 30 units per acre as an incentive to develop housing that is lacking in the area. While NTM is an available zoning category for RM, the Plan specifically states that 30 dwelling units per acre is only "permitted in accordance with the Land Development Regulations [LDRs]." Per the LDRs, the NTM designation could not be placed over this parcel because the designation is used as a transitional zoning category in St. Petersburg's traditional neighborhoods. While PGSP's planning expert considered the neighborhood surrounding the Property to be traditional, he admitted his opinion was not based on standards in the Comprehensive Plan or LDR definitions regarding what is considered a traditional or suburban neighborhood. In contrast, Derek Kilborn, a manager in the City's Planning Department, testified about the different characteristics of traditional versus suburban neighborhoods and opined that the neighborhood surrounding the Property is "suburban" according to the terms in the Comprehensive Plan. This determination is bolstered by the existing zoning of the surrounding neighborhood being largely NS-1. The City established it would be impossible for the Property to qualify for the Missing Middle Housing bonus, because the parcel at issue is not in the NTM zoning category. Rather, as explained by Mr. Kilborn's testimony and based on the LDRs and the Comprehensive Code, the RM category only allows a maximum of 15 dwelling units per acre. The Church has not applied to rezone the Property. The Planning Department's director testified, however, that if the Church had applied for a rezoning for the Property to NTM, the maximum number of dwelling units would be less than the numbers asserted by Petitioner due to the requirements for spacing, alleyways, and height restrictions required in NTM zones. The Property is eligible for a Workforce Housing density bonus. This bonus would increase the maximum density by six dwelling units for workforce housing. The City's final density calculation incorporated the Workforce Housing bonus and determined the maximum density for the RM portion of the Property to be 21 dwelling units per acre. PSGP did not prove beyond fair debate that the actual density of 21 units per acre is an erroneous calculation or contrary to the Comprehensive Plan. Consistency with Objective CM 10B and Policy CM 10.65 Comprehensive Plan Objective CM 10B states: The City shall direct population concentrations away from known or predicted coastal high hazard areas consistent with the goals, objectives and policies of the Future Land Use Element. The phrase "Population concentrations" is not defined by the Comprehensive Plan. The only policy referring to "directing" related to Objective CM 10B is Policy CM 10.6, which states: The City shall direct population concentrations away from known or predicted coastal high hazard areas by not locating water line extensions in the coastal high hazard area, beyond that which is necessary to service planned zoning densities as identified on the Future Land Use Map. The remaining policies related to this Objective involve the placement of transportation and infrastructure, expenditures for flood control, and the operation of roads in a CHHA; none of these issues were raised in these proceedings. In fact, other than the reference to placement of water line extensions in Policy CM 10.6, there is no provision establishing standards for what would constitute direction away from a CHHA. The only area on the Property designated a CHHA is near Bear Creek.6 The Ordinance does not increase density in any part of the CHHA portion of the Property. PGSP's planning expert, Charles Gauthier, equated a population concentration as an area with high density. He argued the Ordinance 5 "CM" means Coastal Management in the Comprehensive Plan. 6 Mr. Kilborn testified that in reviewing the property for compliance with the Plan related to CHHA, there was no study or analysis provided to the City by Petitioner or others showing flooding or hazard impacts for the non-CHHA portion of the Property. violated Policy 10.6 because it increased the density of the area on the Property adjacent to the CHHA. At one point, Mr. Gauthier seemed to say this policy encourages higher density future land use categories only in the "central core or spine of the City." Mr. Gauthier maintained the increase in density on the non-CHHA portion of the Property frustrated this policy because only land in the central part of St. Petersburg should experience density increases. PGSP's reasoning would imply any increase in density near any CHHA and not near the "central core" would violate Policy CM 10.6. Elizabeth Abernethy, Director of the Planning Department, testified that "population concentrations" as contemplated by the Comprehensive Plan are not simply increases in density. Rather, the City core had a concentration of high-density categories yielding approximate 80 to 120 dwelling units per acre; she would not characterize 15 or even 30 units per acre as a "high density" much less a "population concentration." Although she concurred that there are "population concentrations" in St. Petersburg centered in its urban core, she disagreed with Petitioner's expert that increased density on the Property created a "population concentration" near the CHHA or Bear Creek area. There was no competent evidence as to where any water line extensions would be located if the Property's Future Land Use Category were to change from RU and Industrial to RM. The City's interpretation of "population concentration" as used in CM 10.6 is reasonable, and therefore, the City's determination that the Ordinance is in compliance with CM 10.6 is fairly debatable. Consistency with LU 3.47 Comprehensive Plan Policy LU 3.4 states: The Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators. 7 "LU" refers to Future Land Use Element in the Comprehensive Plan. Petitioner focuses on compatible land use transition as only a function of density. PGSP argues a parcel categorized as RM (15 unity density) cannot abut an RU (7.5 unit density) categorized parcel because it violates Policy LU 3.4. Rather, it argues the RLM (10 unit density) category should have been used instead. It claims the City "leap-frogged" categories instead of using a "one step" up or down approach. PGSP's expert admits that a direct step down between plan categories is not explicitly required under the Comprehensive Plan language but argues other language related to "limited variation" required the single step. The plain language of Policy LU 3.4, however, simply requires an "orderly land use arrangement." It does not explicitly or implicitly state that the City must use a "step up" approach when determining the appropriate Future Land Use category. Furthermore, PGSP relied on its density calculation of 30 dwelling units per acre to argue that with the surrounding adjacent land density of 7.5 units per acre, there would be a 400% increase in planned residential density. As stated above, the maximum possible density under the Amendment is 21 dwelling units per acre. Moreover, the City points out that that the mobile home park to the south of the Property has an actual density of approximately 20 dwelling units per acre. Thus, the transition from 20 to 21 is an orderly land use arrangement as contemplated by Policy LU 3.4. The FLUM also does not reflect a perfect one up or down transition pattern throughout St. Petersburg. Rather, it shows areas categorized RM abutting areas categorized RU and RLM. In fact, there is an area designated RM which abuts RU parcels within 800 feet of the Property. The City presented adequate evidence establishing the change from Institutional to a residential category fits with surrounding residential use. Moreover, it established that natural and physical barriers on the Property, including creeks and right of ways, provide transition as contemplated by Policy LU 3.4. PGSP does not explain why these barriers are inadequate. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.4. Consistency with Objective Policy LU 3.6 Policy LU 3.6 states: Land use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated. PGSP argues the increase in density as a result of the change in categories from RU to RM is inconsistent with the "character" of the surrounding neighborhood, which is made up of single-family homes. Again, PGSP's argument relies heavily on the density calculation of 30 units per acre. As stated above, this density is only available with a change to the underlying zoning to NTM, which was not sought by the Church in its application. The maximum density applicable to the RM portions of the Property is 21 dwelling units per acre. As stated above, the City established there are other instances of RM abutting RU in the same neighborhood, approximately 800 feet from the Property. Ms. Abernathy testified that, based on the City's historic development pattern, RM is the appropriate transitional category next to RU on a major street (such as 64th Street South) under the Comprehensive Plan. Ms. Abernethy further testified that residential single-family use adjoining either residential multi-family or commercial uses in the City is a "very common development pattern." Therefore, the RM designation is not inconsistent with Policy LU 3.6. Moreover, the RM designation provides for a primary residential use, which the Institutional designation does not. Although PGSP focused solely on density as the grounds for evaluating the "established character of the neighborhood," the City established that several other considerations go into its analysis related to Policy LU 3.6. Beyond looking at existing and proposed densities of the Future Land Use categories, City staff considers the occurrences and relationships between the uses of the property (i.e., residential versus institutional; or residential versus residential) and the existence of similar patterns in the surrounding neighborhood. In this case, the surrounding areas included other areas designated RM and the mobile home park. Determination of the character of the neighborhood was also based on a study of the existing road network and the potential impacts on traffic due to the Amendment. The street classification of 64th Street South as a Future Major was a key consideration in determining whether the changes in the Property were consistent with the character of the surrounding area because that street is the Property's frontage and only access point. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.6. Data and Analysis PGSP also claims the City did not rely on relevant and appropriate data and analysis in adopting the Ordinance and Amendment. PGSP, however, did not conduct or provide the City with any studies.8 Daniel Porter, PGSP's expert in real estate, did not provide a comparative market analysis of the neighborhood or any other industry- recognized report. He proffered only opinion testimony based on email responses from four nearby residents, only one of which alluded to any issues with selling a home in the area. 8 PGSP retained Mr. Gauthier for this administrative proceeding; he did not testify or prepare a report to the Planning Commission or the City Council. Petitioner's members presented no opposing reports or studies beyond lay opinion testimony during the public hearing. Mr. Gauthier testified that in calculating his density and formulating his opinions, he used the City's map set and GIS data from the City's website.9 In contrast, the City relied on several data sources in reaching its conclusions regarding compliance in the Staff Report, in the presentations at the City Council meeting, and at the final hearing. These sources include the Comprehensive Plan and maps; LDRs; GIS aerials and maps; application materials; a narrative from the property owner; plat records; the Pinellas Countywide Plan Rules; and an outside Traffic Impact Statement by a traffic engineering firm, Kimley-Horn. In addition to the Kimley-Horn report, Tom Whalen, the City's transportation planning expert, performed an analysis related to 64th Street South, which was included in the Staff Report. He also testified at the final hearing regarding his sources for that data, including a City-conducted traffic count, use of the Florida Department of Transportation's level of service tables, and the Forward Pinellas Countywide Rules. At the final hearing, the City also presented demonstrative exhibits in the form of enlarged maps illustrating the surrounding neighborhood, the Property, and similar development patterns of RM and RU designations across the City. Regarding the density calculation, the City introduced and explained the reasons and sources supporting its maximum density figure of 21 dwelling units per acre. This included the Pinellas Countywide Plan Rules, the Comprehensive Plan, and LDRs.10 The City established the Ordinance and Amendment are based upon surveys, studies, and data regarding the character of the land. 9 "GIS" is Geographic Information Systems. 10 Moreover, Mr. Kilborn explained that exact density calculations would be finalized during the site plan review process, which involves further surveys and engineering measurements. Petitioner failed to prove beyond fair debate that the Ordinance was not supported by data and analysis, and/or that the City's response to that data and analysis was not appropriate. Ultimate Findings PGSP did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City has provided a preponderance of the evidence, which is both competent and substantial, which supports the findings in the Staff Report and the City Council's adoption of the Ordinance. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of St. Petersburg Comprehensive Plan Amendment, Ordinance 739-L, is "in compliance" as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Jacqueline Kovilaritch, Esquire City of St. Petersburg Florida One 4th Street North, 10th Floor St. Petersburg, Florida 33731-2842 Michael J. Dema, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Heather Judd, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The issue to be determined in this case is whether the Leon County Development Review Committee’s preliminary conditional approval of a site and development plan for the Brookside Village Residential Subdivision is consistent with the Tallahassee-Leon County 2030 Comprehensive Plan (“Comp Plan”) and the Leon County Land Development Code (“Code”).
Findings Of Fact The Parties Petitioner Moore Pond Homeowners Association, Inc. (“Moore Pond”), is a Florida not-for-profit corporation whose members are residents of Moore Pond, a single-family subdivision bordering the Project to the east. Petitioner Ox Bottom Manor Community Association, Inc. (“Ox Bottom Manor”), is a Florida not-for-profit corporation whose members are residents of Ox Bottom Manor, a single-family residential subdivision bordering the Project to the west. Respondent Golden Oak is a Florida limited liability company. Golden Oak is the applicant for the Project and the owner of the property on which the Project will be developed. Respondent Leon County is a political subdivision of the State of Florida, and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Land Use Designations The Project is located on land that is designated as Residential Preservation on the Future Land Use Map of the Comp Plan, and is in the Residential Preservation zoning district established in the Code. Residential Preservation is described in both as “existing homogeneous residential areas” that should be protected from “incompatible land use intensities and density intrusions.” Policy 2.2.3 of the Future Land Use Element (“FLUE”) of the Comp Plan permits residential densities within Residential Preservation of up to six dwelling units per acre (“du/a”) if central water and sewer services are available. Central water and sewer services are available in this area of the County. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by the County as desirable for new development based on the availability of existing infrastructure and services. The Project The Project is a 61-lot, detached single-family residential subdivision on a 35.17-acre parcel. To avoid adverse impacts to approximately 12 acres of environmentally sensitive area in the center of the property, the Project places the single-family lots on the periphery of the property with access from a horseshoe-shaped street that would be connected to Ox Bottom Road. The environmentally sensitive area would be maintained under a conservation easement. The “clustering” of lots and structures on uplands to avoid environmentally sensitive areas is a common practice in comprehensive planning. The Comp Plan encourages clustering or “compact” development to protect environmentally sensitive features. The Project would include a 25-foot vegetative buffer around most of the perimeter of the property. There is already a vegetative buffer around a majority of the property, but the vegetative buffer will be enhanced to achieve 75 percent opacity at the time of additional planting and 90 percent opacity within five years. The buffers would include a berm and privacy fence. The proposed buffers exceed the requirements in the Code. In the course of the application and review process for the Project, Golden Oak made changes to the site and development plan to address concerns expressed by residents of the neighboring subdivisions. These changes included an increase in lot sizes abutting lots within Moore Pond and Ox Bottom Manor; a reduction in the number of lots from 64 to 61; and an expansion and enhancement of buffers. In addition, Golden Oak revised the proposed covenants and restrictions for the Project to incorporate minimum square footage requirements and to prohibit second-story, rear-facing windows on homes abutting lots in Moore Pond and Ox Bottom Manor. The Development Review Committee approved the Project, subject to the conditions outlined in the staff report and an additional condition regarding buffers. Compatibility Petitioners contend the Project would be incompatible with adjacent residential uses in Moore Pond and Ox Bottom Manor and, therefore, the Project should be denied because it violates the provisions of the Comp Plan and Code that require compatibility. Petitioners rely mainly on FLUE Policy 2.2.3, entitled “Residential Preservation,” which states that “Consistency with surrounding residential type and density shall be a major determinant in granting development approval.” Although Moore Pond and Ox Bottom Manor are also designated Residential Preservation, Petitioners claim the Project would be incompatible because of the differences in development type and density. The Project is the same development type (detached, single-family) and density (low density, 0-6 du/a) as the surrounding development type and density. Petitioners assert that the Project is a different development type because it is “cluster housing.” Cluster housing is not a development type. Clustering is a design technique. The clustering of detached, single-family houses does not change the development type, which remains detached, single-family. Petitioners object to the density of the Project of 1.73 du/a, but their primary concern is with the Project’s “net density” or the density within the development area (outside of the conservation easement). Most of the lots in the Project would be about 1/8 to 1/4 of an acre, with the average lot size being 0.26 acres. In contrast, the lots in Moore Pond range from 1.49 to 12.39 acres, with the average size being 3.08 acres. The lots in Ox Bottom Manor range from .53 acres to 0.96 acres, with the average size being 0.67 acres. There is also a significant difference in lot coverage between the Project and the two adjacent subdivisions. The witnesses for the County and Golden Oak never acknowledged the reasonableness of Petitioners’ claim of incompatibility or the notion that owners of large houses on large lots would object to having on their border a row of small houses on small lots. However, the objection of Moore Pond and Ox Bottom Manor residents was foreseeable. The gist of the arguments made by Oak Pond and the County is that the Project is compatible as a matter of law. Respondents demonstrated that the applicable provisions of the Comp Plan and Code, as interpreted by the County, treat a proposed Residential Preservation development as compatible with existing Residential Preservation developments. Put another way: a low density, detached single-family development is deemed compatible with existing low density, detached single- family developments. No deeper analysis is required by the County to demonstrate compatibility. Petitioners’ claim of incompatibility relies principally on FLUE Policy 2.2.3(e), which states in part: At a minimum, the following factors shall be considered to determine whether a proposed development is compatible with existing or proposed low density residential uses and with the intensity, density, and scale of surrounding development within residential preservation areas: proposed use(s); intensity; density; scale; building size, mass, bulk, height and orientation; lot coverage; lot size/configuration; architecture; screening; buffers, including vegetative buffers; setbacks; signage; lighting; traffic circulation patterns; loading area locations; operating hours; noise; and odor. Petitioners attempted to show that the application of these factors to the Project demonstrates it is incompatible with Moore Pond and Ox Bottom Manor. However, Policy 2.2.3 also sets forth guiding principles for protecting existing Residential Preservation areas from other types of development on adjoining lands. No guidelines are included for protecting Residential Preservation areas from proposed low density residential development. The County asserts that this reflects the County’s determination that low density residential development is compatible with existing Residential Preservation areas and, therefore, Policy 2.2.3 does not require that the Project be reviewed using the listed compatibility factors. The County showed that its interpretation of FLUE Policy 2.2.3 for this proceeding is consistent with its past practice in applying the policy. Respondents also point to Table 6 in FLUE Policy 2.2.26, which is a Land Use Development Matrix which measures a parcel’s development potential based on certain land use principles contained in the FLUE, including the parcel’s potential compatibility with surrounding existing land uses. The Matrix shows that a proposed low density residential land use “is compatible/allowable” in the Residential Preservation land use category. Petitioners argue that the Project is incompatible, using the definition of “compatibility” in section 163.3164(9), Florida Statutes: “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. Petitioners contend the Project would unduly negatively impact Moore Pond and Ox Bottom Manor. Respondents contend it would not. However, as explained in the Conclusions of Law, this definition in chapter 163 is not an extra criterion for approving or denying the Project. Without abandoning their argument that Policy 2.2.3 does not require a compatibility analysis for the Project, both Golden Oak and the County performed compatibility analyses because of the objections raised by adjacent residents. Golden Oak’s expert planner analyzed compatibility on a larger scale by looking at subdivisions within a quarter-mile radius of the Project site. She found a range of densities and lot sizes, including one subdivision with a higher density and smaller lot size. However, nothing in Policy 2.2.3 or the other provisions of the Comp Plan suggests that the incompatibility of a proposed development with an existing, adjoining development is permissible if the proposed development is compatible with another development within a quarter of a mile. Still, her analysis showed the County’s past practice in interpreting and applying the relevant provisions of the Comp Plan and Consistency Code is consistent with the County’s position in this proceeding. Respondents’ compatibility analyses were based in part on legal factors. For example, it was explained that under the Comp Plan, residential density is always applied as gross density rather than net density. This policy is reasonable because it encourages clustering and compact development which helps to achieve important objectives of the Comp Plan, such as the protection of sensitive environmental features. However, it does not follow that because clustering has benefits, it cannot cause incompatibility. Clustering is a well-established growth management technique, despite the fact that clustering can cause some adverse impacts when it increases densities and intensities on the border with adjoining land uses. Such impacts are addressed with buffer requirements. This approach strikes a reasonable balance of the Comp Plan’s goals, objectives, and policies. If the buffer requirements are inadequate, as Petitioners claim, that is an issue that cannot be addressed here. Petitioners also contend the Project is inconsistent with sections of the Code that require compatibility. For example, section 10-6.617 pertains to the Residential Preservation zoning district and states that, “Compatibility with surrounding residential type and density shall be a major factor in the authorization of development approval.” Section 10-7.505(1) provides that each development shall be designed to “be as compatible as practical with nearby development and characteristics of land.” These general statements in the Code are implemented through the more specific requirements in the Code for proposed new developments. Petitioners did not demonstrate that the Project is inconsistent with any of the specific requirements of the Code for the reasons already discussed. The County showed that its interpretations of section 10-7.617 and section 10-7.505(1) for this proceeding are consistent with its past practice in applying these provisions. Summary Compatibility for purposes of land use determinations is not in the eye of the beholder, but is determined by law. The County’s growth management laws incorporate professional planning principles and use development techniques and density ranges, which provide flexibility in achieving important objectives, such as environmental protection. The focus is not on lot-to-lot differences, but on maintaining stable communities and neighborhoods. The preponderance of the evidence, which includes the County’s past interpretation of, and practice in applying, the compatibility provisions of the Comp Plan and Code, demonstrates that the Project is consistent with all requirements for approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Development Review Committee in its written preliminary decision dated August 18, 2017. DONE AND ENTERED this 26th day of December, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2017. COPIES FURNISHED: Justin John Givens, Esquire Anderson & Givens, P.A. 1689 Mahan Center Boulevard Tallahassee, Florida 32308 Alex Nakis 6036 Heartland Circle Tallahassee, Florida 32312 Mark Newman 6015 Quailridge Drive Tallahassee, Florida 32312 Gene Sherron 6131 Heartland Circle Tallahassee, Florida 32312 Jessica M. Icerman, Assistant County Attorney Leon County Room 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed) Carley J. Schrader, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Kerry Anne Parsons, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive Suite 200 Tallahassee, Florida 32308 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Erin J. Tilton, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Jeremy Vincent Anderson, Esquire Anderson & Givens, P.A. Suite B 1689 Mahan Center Boulevard Tallahassee, Florida 32308 (eServed) Vince S. Long, County Administrator Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 Herbert W. A. Thiele, County Attorney Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed)
