The Issue Whether the Florida Land and Water Adjudicatory Commission (the “Commission”) should grant the Petition of the Tolomato Community Development District ("Tolomato") and the Split Pine Community Development District ("Split Pine") (collectively, the "Districts" or "Petitioners") to merge the two community development districts pursuant to Section 190.046(3), Florida Statutes? Concomitantly, whether the Commission should adopt a rule pursuant to Section 190.005, Florida Statutes, that establishes a single community development district with boundaries that incorporate the areas of Tolomato and Split Pine merged into the single district to be known as the Tolomato Community Development District (the "Merged District")?
Conclusions Pursuant to Section 190.005(1)(d), Florida Statutes, the initial two sessions of a local public hearing were conducted on July 7, 2009, before David M. Maloney, an Administrative Law Judge of the Division of Administrative Hearings (DOAH), at the Ponte Vedra Beach Library Community Room, 101 Library Boulevard, Ponte Vedra, Florida 32082 and the Baymeadows Residence Inn Marriott, 8365 Dix Ellis Trails, Jacksonville, Florida 32256. Two additional sessions were held on July 27, 2009, at the same locations.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Tolomato Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Split Pine Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Pine Island Community Development District (Petition), dated September 9, 2003. The local public hearing was for purposes of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.1
The Issue At issue in this proceeding is whether PAM 98-01, a small scale amendment to the future land-use map ("FLUM") of the Lee County Comprehensive Plan (the "Lee County Plan" or the "Plan"), changing the future land-use designation of approximately 9.9 acres of land on Pine Island from Rural to Outlying Suburban, complies with the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Parties Petitioners, Barbara Dubin and William Dubin, are residents and property owners on Pine Island in the portion of Lee County affected by PAM 98-01. Ms. Dubin testified that she and her husband timely participated in the adoption process and made their objections before the Lee County Local Planning Agency (the "LPA") and the Board. No evidence was offered to contest Ms. Dubin’s testimony on this point. Therefore, the Dubins are each "affected persons" as that term is used in Sections 163.3184(1)(a) and 163.3187(3)(a), Florida Statutes, and have standing to file a petition challenging the adoption of PAM 98-01. Ms. Dubin is a member of the Civic Association and knowledgeable regarding its activities. She testified that the Civic Association has been incorporated as a not-for-profit corporation in the State of Florida for at least the past ten years. The purpose of the Civic Association is the preservation and protection of the environment and quality of life of Pine Island. The Civic Association has between 130 and 160 members, all of whom reside on Pine Island. Ms. Dubin testified that the Civic Association owns land and a building on Pine Island, at the intersection of Pine Island Road and Stringfellow Road, near the 9.9-acre parcel that is the subject of PAM 98-01. The Civic Association uses this building for its meetings, conducted monthly for ten months of the year with a break during the summer months. The Civic Association collects member dues within Lee County, and has a bank account in Lee County. It conducts educational activities, monthly meetings, publishes a monthly newsletter containing educational information concerning Pine Island land-use and quality of life issues, and participates in governmental meetings concerning Pine Island. Through members who spoke on its behalf, the Civic Association participated in the adoption process and objected to PAM 98-01 at the LPA hearing and the Board meeting at which the amendment was adopted. The Civic Association is an "affected person" as that term is used in Sections 163.3184(1)(a) and 163.3187(3)(a), Florida Statutes, and has standing to file a petition challenging PAM 98-01. Respondent, Lee County, is the local government whose land-use plan amendment is at issue in this proceeding. Intervenor, Gregory Eagle, is the owner of the real property that is the subject of PAM 98-01, and has standing to participate as a party in this proceeding. Pine Island The Greater Pine Island Area is located in Lee County west of the City of Cape Coral, south of the open waters of Charlotte Harbor, east of Captiva Island, North Captiva Island and Cayo Costa Island, and north of Sanibel Island. The Greater Pine Island Area consists of Pine Island, Little Pine Island, and the historic community of Matlacha, which is located on the Pine Island Road Causeway across the Matlacha Pass Aquatic Preserve between Little Pine Island and the Lee County mainland. The waters surrounding the Greater Pine Island Area are the waters of the Matlacha Pass Aquatic Preserve to the east, San Carlos Bay to the south, the Pine Island Sound Aquatic Preserve to the west, and Charlotte Harbor to the north. Pine Island is a long, narrow, roughly rectangular island, with the long sides running north and south. The island is roughly 16 miles long and two miles wide. Existing communities and residential development on Pine Island are essentially confined to five parts of the island. At the far north end of the island is the fishing community of Bokeelia, where the Dubins live. A golf course sits just south of Bokeelia. A residential development called Pineland is situated on the island’s northwest coast, between Bokeelia and Pine Island Road. At the center of the island, at the junction of Pine Island Road and Stringfellow Road, is the Pine Island Center, which is the main urban area of the island. A residential development called Flamingo Bay is situated between the Pine Island Center and the south end of the island. At the south end of the island is the small fishing village of St. James City. Matlacha is a small historic village that grew up around the Pine Island Causeway, which was built in the early decades of this century to connect Pine Island to the mainland. Lee County has designated parts of Matlacha as an historic district. Lee County statistics indicate a total of 26,393 acres on Pine Island, 13,693 acres of which are reserved for conservation uses. The existing land-uses of the remaining approximately 12,700 acres are as follows: 6,032 acres are vacant or undeveloped; 3,273 acres are used for active and passive agricultural activities; 2,084 acres are used for residential activities, including 822 acres classified as rural; 138 acres are used for commercial activities; 24 acres are used for industrial activities; and 1,148 acres are allocated for public uses. The current permanent population of Pine Island is 10,511 persons, and the seasonal population is 15,900 persons. There are currently 5,954 dwelling units on Pine Island. In 1990, the population of Pine Island was 7,300 persons, and the number of dwelling units was 5,520. The Lee County Plan recognizes and gives priority to property rights previously granted for about 6,800 additional dwelling units in Policy 14.2.2, set forth infra in the discussion of Transportation Need Projections. Lee County Plan In 1984, Lee County adopted its first official FLUM as an integral part of the Lee County Plan. On that initial FLUM, Intervenor’s property was divided into two land-use categories: Urban Community and Rural. The maximum standard density for the Urban Community designation established by the 1984 Plan was six dwelling units per acre (du/ac). Maximum density for the Rural designation was 1 du/ac. In 1985, the Florida Legislature passed the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. In 1987, the Civic Association hired a professional planner to study the Greater Pine Island Area and prepare recommendations that Lee County could incorporate in its 1989 revision of the Lee County Plan, pursuant to the 1985 legislation. In 1988, the Civic Association issued the resulting study, which provided a description of the population, generalized land-use and zoning patterns, historic and archaeological resources, the area’s transportation network, and the availability of public services such as potable water and sewer facilities as of 1987. The "development suitability" of Intervenor’s property was discussed in relation to the listed items as well as hurricane evacuation and the condition of Pine Island and Stringfellow Roads. The study made extensive recommendations to amend the Lee County Plan, and was used by the Civic Association as the basis for initiating amendment PAM/T 88-07 to the Lee County Plan. Lee County staff analyzed and evaluated the recommendations of the study, and incorporated many of them into the 1988/89 update of the Lee County Plan, including what is now Goal 14 relating to Greater Pine Island. As to the property at issue in this proceeding, staff recommended that the land-use category be changed to all Rural. The FLUM was indeed amended to include all of the subject property in the Rural category. William Spikowski, who was the Lee County planner in charge of preparing the 1988/89 update to the Lee County Plan, testified that the intent was to limit most industrial and commercial development on the island to the Pine Island Center, which was given the Urban Community designation allowing the greatest number of mixed and nonresidential uses. Mr. Spikowski testified that the lines around this area were tightly drawn to clearly separate urban from rural uses, with some exceptions where the intensities "stepped down" to recognize existing development. PAM 98-01 Since about 1992, Intervenor has owned 58 acres of vacant land approximately 3/4 of a mile south of the intersection of Pine Island Road and Stringfellow Road. The 9.9-acre property that is the subject of PAM 98-01 is a portion of this 58-acre parcel, and is currently zoned CC and CG, both commercial zoning designations. The 58-acre parcel has been considered for a change in land-use classification three times since 1989, when it was excluded from the adjacent urban center of Pine Island and given a Rural designation. This parcel was the only commercially-zoned property adjacent to the urban center that was excluded from the urban center in 1989. Prior to 1989, as noted above, the subject parcel was designated as Urban Community in the Lee County Plan. The change of the parcel from Urban Community to Rural in 1989 was not challenged at the time it was adopted. On two prior occasions, the Board has considered but not approved proposals that would have returned the full 58-acre parcel to an urban land-use designation; on another occasion, the Board rejected a proposal that would have effectively locked the parcel out of any urban use designation. Greg Stuart, an expert in land-use planning who sits on the LPA, testified that the county’s concern with the earlier proposals was a reluctance to change the entire 58-acre parcel to an urban land-use and thus increase population capacity on the island. PAM 98-01 was in part an attempt to satisfy this concern by proposing a change for a smaller portion of the tract, and to the least intense urban use available. Matt Noble, Lee County’s principal planner, also testified that he believed the smaller area and less intense classification were factors in the Board’s decision to approve PAM 98-01. He added that another factor in the Board's approval of PAM 98-01 was that this property "appears to have been singled out" in the 1988 amendment cycle, in that it was the only commercially-zoned property adjacent to the Pine Island Center not to have been included in the Pine Island Center. Immediately south of the 58 acre parcel is a vacant Rural designated parcel with AG-2 and RM-2 zoning. South of this vacant parcel are three parcels (two Rural designated, one Wetlands designated) owned by the Greater Pine Island Water Association. The Water Association has constructed a reverse osmosis ("RO") plant on one of the Rural parcels. Immediately south of the RO plant site is the Island Acres Subdivision, with a Rural designation. On June 5, 1995, the Board approved a rezoning of this property to RPD, which permits the development of 31 single-family residential dwellings on lots ranging from just over one acre to just over 1/2 acre, the excavation of a 12.23-acre lake, and an 8.55-acre wetland preserve area. As of the submission of the Staff Report on April 13, 1999, the internal roads of Island Acres Subdivision had been constructed but no dwellings had yet been built. Immediately east of Intervenor’s 58-acre parcel are vacant lands designated Rural and Wetlands. To the west is Stringfellow Road, and on the west side of Stringfellow Road is a 134-acre vacant parcel designated Rural. Additional vacant land designated Rural is on the west side of Stringfellow Road. To the north of and abutting Intervenor’s 58-acre parcel is a developed property with a Huntington Bank building. This property is zoned CC and CG, and is split between Urban Community and Rural land-use designations. To the north of the Huntington Bank parcel is a Winn-Dixie Shopping Center, zoned C-1A and located within the Urban Community of Pine Island Center. In summary, while Intervenor’s parcel is the only commercially-zoned property adjacent to the Pine Island Center that does not also have an Urban land-use designation, it is also the case that the only urban or commercial development in the vicinity is to the north of Intervenor’s property, with the exception of the RO plant. Mr. Noble testified that Intervenor’s parcel is served by public services at least to the same extent as the nearby properties included in the Pine Island Center designation. Mr. Noble agreed that the Staff Report’s notation that there is no sewer service available to Intervenor’s property was not a unique characteristic of this property; in fact, there is no central sewer service on Pine Island that property owners at large may tap into. As noted above, there are over 600 acres of land in the Greater Pine Island Area with commercial zoning. This acreage includes vacant land in the Pine Island Center with a current land-use designation of Urban Community, which indicates "a mixture of relatively intense commercial and residential uses," "distinctly urban" but developed at "slightly lower intensities." PAM 98-01 would change the land-use designation of Intervenor’s vacant 9.9-acre parcel from Rural to Outlying Suburban, increasing the permissible residential density from 1 du/ac to 3 du/ac, an increase of 20 dwelling units, assuming the entire parcel is developed residentially. Intervenor’s application proposed 25,000 square feet of commercial development on three acres of the parcel, and 21 dwelling units on the remaining acreage. The Staff Report pointed out, however, that Lee County cannot condition the requested change in land-use designations to limit development potential to this proposed scenario. Therefore, the Staff Report applied the most intensive scenario of retail commercial uses that could occur on the property. At the hearing, Mr. Noble, Lee County’s lead planner on this application, testified that while the staff’s conclusions were based on commercial uses, the residential aspects of the project were also evaluated in the section of the Staff Report dealing with population accommodation. The Staff Report concluded as follows: The subject property has had quite a long history concerning it’s [sic] future land-use designation. The property’s owners have consistently been requesting an increase in density and intensity, while the citizens of Pine Island, just as consistently, have been opposed. This request is the smallest in area to date, with the least intensive increase in density and intensity. The owner argues that, under the current designation, the property is not developable. This contention would appear to be invalid, given the development of the Island Acres subdivision, immediately to the south of the RO plant. Pine Island is a unique place with considerable constraints to development as an urban area. With no increase in land-use designation, the level of service on Pine Island Road and Stringfellow Road will operate below the adopted standard before the year 2020. The thresholds established by Policy 14.2.2 will be exceeded by the year 2005. Limited access and it’s [sic] location in regards to hurricane vulnerability make it difficult to entertain or justify increases in density and/or intensity. There are ample areas currently designated on the island to accommodate the proposed development scenario. The full range of urban services, such as sanitary sewer and mass transit, are not and will not be available to this site. This would be the first land-use amendment on Pine Island since the 1988 Pine Island Land-use Study was incorporated into the Lee Plan. Even though a considerable amount of time has passed since the study’s completion, few changes in the condition of the island have occurred. Staff concludes that there are viable uses allowed on this property. Staff can see no compelling reason to support this proposed land-use amendment. While the impact of ten acres changing from a Rural designation to the Outlying Suburban category, when looked at on a county wide basis, is minimal, the unique circumstances on Pine Island do not support this change. The LPA voted against adoption of PAM 98-01 by a vote of 4-1, with two members (including Mr. Stuart, who worked on the project for Intervenor) abstaining. The LPA adopted the findings of fact set forth in the Staff Report, and added its concern with maintaining the current line of separation between urban and suburban uses. One LPA member did comment that "if there is another shopping center site on Pine Island, it’s probably this property," and in the "long run" there may be a need for another shopping center on Pine Island. The Board voted 3-2 to adopt PAM 98-01, finding that "the request would result in minimal impacts to such services as transportation, public safety, schools, and population accommodation." The petition filed by Petitioners, as amended, raised the following issues of fact and law: Data and Analysis: that PAM 98-01 is unsupported by data and analysis for increased residential and commercial designation on Pine Island and thus is not in compliance with Section 163.3177(8) & (10)(e), Florida Statutes, and Rules 9J- 5.005(2), 9J-5.006(2)(b) & (c), and 9J- 5.006(5)(a) & (g), Florida Administrative Code. Coastal Hazard: that PAM 98-01 is not in compliance with Section 163.3178(2), Florida Statutes, and Rules 9J-5.006(2), 9J- 5.012(3), and 9J-5.012(3)(b)6., Florida Administrative Code, because it directs population to the known or predictable coastal high hazard area. Land-use Suitability: that PAM 98-01 is unsupported by data and analysis supporting the suitability of land for increased residential density or intensity of commercial development and thus is not in compliance with Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.006(2), 9J- 5.006(2)(b), and 9J-5.006(5)(a) & (g), Florida Administrative Code. Internally Inconsistent: that PAM 98-01 is internally inconsistent with the following Lee County Plan goals, objectives, and policies: Policy 5.1.2 prohibiting residential development where physical constraints or hazards exist, or requiring the density and design to be adjusted accordingly. Constraints or hazards include flood, storm, or hurricane hazards, and environmental limitations. Goal 14 requiring that the management of growth on Pine Island maintain the island’s unique natural resources and character, and insure that island residents and visitors have a reasonable opportunity to evacuate when a hurricane strike is imminent. Objective 14.1 requiring that Pine Island have no unnecessary loss of native upland vegetation or habitat. Policy 14.2.2, set out in full above, concerning future development regulations to limit future development approvals when traffic reaches certain thresholds. Objective 14.3 requiring that county regulations, policies and discretionary actions to recognize "certain unique characteristics" of Greater Pine Island justifies different treatment of existing and future residential areas than in mainland Lee County. Goal 75 protecting human life and developed property from natural disasters. Objective 75.1 and Policies 75.1.2 and 75.1.4 concerning densities in coastal high hazard areas. Objective 77.2 and Policies 77.2.3 and 77.2.6 concerning protection of natural plant communities. Policy 77.4.4 restricting the use of protected plant and wildlife species habitat to that which is compatible with the requirements of endangered and threatened species and species of special concern. Policy 77.8.1 concerning the protection of gopher tortoise burrows. Goal 79 and Objectives 79.1 and 79.2 concerning evacuation times and shelter capacity. Inconsistent with State Plan: that PAM 98-01 is inconsistent with Section 187.201(7)(b)23, Florida Statutes, which concerns protecting life and property from natural disasters such as hurricanes, and Section 187.201(10)(a), Florida Statutes, which concerns protecting natural habitats and ecological systems. Suitability In 1989, Lee County’s Department of Community Development prepared the Pine Island Commercial Study, in response to a general directive by the Board to develop a means of identifying future commercial sites throughout Lee County, and in direct response to issues emerging from the review of two specific commercial zoning cases on Pine Island. The Commercial Study was initiated to research, analyze, and quantify commercial zoning needs for Pine Island, and then identify suitable locations for potential future development. The Commercial Study concluded that in 1989 there were over 600 acres of commercially-zoned property on Pine Island, and that this acreage was "far in excess of any possible need, even at build-out, of Pine Island." The study went on to say: However, it is recognized that not all the lands currently zoned commercially are in advantageous locations, nor are they in appropriate land-use categories. In fact, properties in locations with strong market demand and good transportation access and suitable lot sizes are relatively limited. The Commercial Study also concluded that much of the land already zoned for commercial use was zoned C-1 and C-1A, "carryover" categories from older Lee County ordinances based on "pyramid" zoning, i.e., they also allowed residential uses. The study found that the most desirable solution to this problem would be to rezone these properties to non-commercial categories, but recognized the prohibitive cost of such a "relatively massive undertaking." It recommended the more practical option of modifying zoning regulations to make it clear that retail commercial uses can only be located within "designated commercial nodes," regardless of their zoning categories. The Commercial Study also concluded that additional retail uses would be needed on Pine Island as the population grows, although current uses were adequate to meet existing needs "until the year 2000," and that commercial development should be concentrated in the Pine Island Center, with possible convenience store sites at St. James City and Bokeelia. Approximately 236 acres were identified in the Commercial Study as appropriate commercial areas. The Commercial Study stated that this was more than four times the amount needed for 1990 retail and general commercial uses. Mr. Spikowski testified that it is typical for more property to be zoned commercial than is actually needed, because land owners are attempting to maximize the value of their property. He testified that a "slight surplus," in the range of 15 to 25 percent, is appropriate to avoid giving a few land owners a monopoly on future development. The property at issue in this proceeding was not included in the 236 acres deemed appropriate for commercial development. Despite several efforts from 1990 through 1993, no amendment establishing these commercial nodes was ever adopted by the Board. Ultimately, the Civic Association itself withdrew its support for the commercial nodes plan, stating that the plan as proposed would promote commercial strip development and commercial sprawl. In 1993, the Board adopted Policy 14.4.3, which would have required Lee County staff to update the Commercial Study in 1995. However, no such update was ever undertaken, and in 1998 the Board amended the Lee County Plan to delete Policy 14.4.3. The staff report recommending deletion of the policy noted that current demand for commercial sites had been minimal and did not warrant a full scale update of the Commercial Study, and concluded that the 1989 Commercial Study was "still a current document" not in need of an update. The Lee County Plan incorporates a "planning community" concept through an overlay, commonly referred to as the "FLUM 2020 Overlay," that establishes certain acreage allocations for uses that can occur within 20 discrete planning areas before the year 2020. Pine Island is one of these planning areas. The FLUM 2020 Overlay is intended to allocate development throughout the county and prevent excessive development in particular land-use categories beyond the projected need. The FLUM 2020 Overlay allocates development on Pine Island through the year 2020 as follows: Category Allocation (in acres) Intensive Development (for Residential Development) 5 Urban Commercial (for Residential Development) 526 Suburban (for Residential Development) 636 Outlying Suburban (for Residential Development) 466 Rural (for Residential Development) 1,129 Outer Island (for Residential Development) 37 Wetlands (for Residential Development) 88 Commercial 165 Industrial 64 j. Public 1,722 k. Active Agriculture 2,313 l. Passive Agriculture 960 m. Conservation 13,693 n. Vacant 4,586 Total 26,390 Below this list of allocations is a table called "Non Regulatory Allocations," which shows a total of 26,393 acres, slightly different from the total derived above. The "Non Regulatory Allocations" table lists 13,738 acres as conservation lands, leaving 12,700 acres. An additional 4,586 acres are designated "Vacant" in the "Non Regulatory Allocations," but their land-use designation is not identified. The FLUM 2020 Overlay provides for 165 acres of commercial development on Pine Island by the year 2020. Mr. Spikowski testified that Lee County’s database indicated that as of 1997 there were 138 acres developed commercially on Pine Island, leaving a need of 27 acres of vacant land for commercial development before the year 2020. Mr. Noble, the principal planner for Lee County, testified that his conclusion, reflected in the Staff Report, was that there is no need for additional commercial or urban lands on Pine Island, and that approval of PAM 98-01 would cause unnecessary commercial development on Pine Island. He testified that these conclusions were largely based on the findings of the 1989 Commercial Study of Pine Island. Mr. Noble also testified that, despite his conclusion as to the lack of need for commercial development, the FLUM 2020 Overlay allocates sufficient acreage to accommodate the property involved in PAM 98-01 without requiring an amendment to the overlay. Mr. Noble testified that no effort was made to update the findings of the 1989 study, because none was needed. He testified that there has been very little rezoning or development activity on Pine Island since 1989 aside from some clearing for agricultural uses, and therefore the 1989 study represents the best available data. Mr. Spikowski agreed with this assessment, testifying that while the 1989 study is somewhat out of date, it still provides good information on how much commercial development is needed to serve the community. Mr. Spikowski testified that the study still provides more information than exists for other parts of Lee County regarding the relationship between commercial development and commercial zoning. Mr. Noble admitted that the county’s capabilities in collecting and categorizing data have improved since 1989, but did not agree that revising the study would result in improved information, because the county’s zoning information is so inaccurate that one could not rely on the existing land-use data base to update the study. Thus, despite the fact that the county’s data base is now linked to the property appraiser’s records on a parcel by parcel basis, an accurate revision of the study would require verification of each parcel, and the lack of activity on Pine Island indicated to Mr. Noble that such an expenditure of resources was not needed to assess this application. Mr. Noble testified that the staff recommendation against approval was not a statement that approval of PAM 98-01 would be illegal. Mr. Noble also agreed there was a difference between opining that there is no need for more commercial and urban classifications, and holding that more such classifications are not allowed. He attended the meeting at which the Board approved the amendment, and believed the Board understood staff’s presentation and considered all relevant information in arriving at its decision. Mr. Noble testified that the Lee County Plan is currently in compliance with all applicable legal requirements, and he did not think that PAM 98-01 would place the plan out of compliance. Mr. Stuart, Intervenor’s planner, testified that once he began to understand that Lee County staff had concerns with overcommercialization of Pine Island based on the 1989 study, he took a hard look at that data. He testified that the 602 acres of commercial property set out in the Commercial Study did not appear correct "when you look at the map." Mr. Stuart testified that he performed a specific land- use study using the Lee County Division of Planning geographic information system resources. Mr. Stuart began by looking at the 1989 study, and noted that no information was available to show how the county derived the 602-acre figure. The only thing available in the county’s files was a single sheet aggregating the numbers into a total, without explanation of how the constituent numbers were derived. Mr. Spikowski, who was Lee County’s head planner in 1989, testified that the 602-acre figure was calculated "very carefully," but offered no detail to illumine that conclusory statement. Mr. Stuart testified that, though he suspected the total was inflated, he assumed that it was reasonably accurate for purposes of his analysis. Mr. Stuart considered the currently expected population of Pine Island based upon currently available data, the county’s planning conversion ratio of 2.09 persons per household on Pine Island, the county’s conversion ratio adjusting Pine Island’s population for seasonal residents, and then calculated the projected need for commercial development expressed in acres, using the same ratios that Lee County uses in planning for this purpose. Mr. Stuart also developed a computer table, with the assistance of county staff, of all the commercially-zoned property on Pine Island. He then adjusted the output to correct data entry errors and approximated the commercial acreage determined to be available in the 1989 Commercial Study. Mr. Stuart next examined the properties parcel by parcel to delete those commercially-zoned properties that have already been put to non-commercial use, that are wetlands unlikely to be commercially developed, that are in use as public facilities, and those that may not be developed because they are designated with outdated zoning categories that are restricted under the Lee County Land Development Code. This process derived an estimate of the number of commercially-zoned acres on Pine Island that are either in commercial use or are available for commercial use. Mr. Stuart’s analysis concluded that there is actually a deficit on Pine Island of 69 acres of commercially-zoned property that may as a practical matter be put to commercial use, when the projected demand for such property to serve the projected population of Pine Island is taken into account. In summary, it is found that Petitioners failed to demonstrate by a preponderance of the evidence that the increase in residential density and commercial intensity contemplated by PAM 98-01 is not suited to accommodate the population of Pine Island. The most conservative estimate rendered by the data and analysis indicates a need for an additional 27 acres of commercial development. No amendment of the FLUM 2020 Overlay is needed to effect this small-scale FLUM amendment. Mr. Stuart’s analysis is credited to the extent it supports a finding of substantial need. Petitioners offered no competent substantial evidence regarding residential allocations and the lack of any need for additional residential density, and thus failed to overcome the presumption that the Board’s action in adopting PAM 98-01 was correct on this point. Transportation Vehicular access from the mainland to Pine Island is provided solely by way of Pine Island Road, a two-lane road that proceeds over Matlacha Pass, through the Matlacha community, and over Little Pine Island by a series of bridges and causeways. North/south access on Pine Island is by way of Stringfellow Road, a two-lane road that runs from the community of Bokeelia at the north end of Pine Island to the community of St. James City at the south end of Pine Island. William Spikowski, a planner who testified on behalf of Petitioners, stated that widening the narrow, two-lane Pine Island Road to accommodate more traffic would be at best a difficult and expensive proposition. He testified that the right-of-way through most of the Matlacha community is only about 66 feet wide, and the buildings are often located directly adjacent to the right-of-way. He testified that if the right-of- way were widened to 90 feet to accommodate extra lanes, 75 buildings would have to be removed and several other businesses would lose their parking lots. Mr. Spikowski concluded that Pine Island Road is the biggest limitation on the island’s development. The Lee County Plan designates Pine Island Road as a constrained roadway as it passes through Matlacha, due to the narrow right-of-way and scenic, aesthetic, and environmental considerations. Matt Noble, a Lee County planner, testified that there were no improvements scheduled for Pine Island Road for the next three years, and that the road is projected to operate at Level of Service "F" in the year 2020 based on the applicant’s analysis. Level of Service "F" is below the standard adopted by the Lee County Plan. Mr. James Banks, a professional engineer expert in transportation engineering and planning, testified that the predictive methodology employed by county staff, i.e., assuming no road improvements while loading the system with future traffic demands, would result in a Level of Service "F" rating for nearly every major roadway in Lee County for the year 2020. He testified that this was an improper method for reviewing development permits. Mr. Banks testified that the proper method is to look at the roadway’s capacity at the time of the development application to determine whether there is available capacity today. If there is no capacity available, then the developer must devise a way to mitigate the impact, alleviating any degradation below the road’s adopted level of service. The permitting system is "first come, first serve," meaning that if the capacity is available today, then the permit is issued. Mr. Banks testified that there is no data indicating that the capacity of Pine Island Road will be exceeded by the year 2005. The sole hurricane evacuation route from the Greater Pine Island Area is by way of Stringfellow Road to Pine Island Road, then north on Burnt Store Road. Burnt Store Road is also the evacuation route for the City of Cape Coral. Several Pine Island residents testified as to their concerns that any increase in development on the island will further compromise the ability to evacuate the island in the event of a hurricane. There are no hurricane shelters on Pine Island, and no public services on the island during hurricanes. The Lee County Staff Report for PAM 98-01 raised similar concerns, concluding that the applicant is "seeking to increase density thereby increasing the number of persons at risk, impacting evacuation routes and shelter space." At the hearing, Matt Noble, Lee County’s principal planner and the lead planner working on the Staff Report, testified that the quoted statement in the Staff Report assumed that the development on the 9.9-acre parcel would be residential. He further testified that commercial development of the property would have no effect on evacuation times, which are based on the number of residents attempting to leave the island. Mr. Noble’s testimony on this point conflicts somewhat with the Staff Report’s statement that the application was reviewed using the most intensive scenario of retail commercial uses occurring on the property. However, given that the proposed plan amendment could not limit the development that could ultimately be requested on the property, it was not arbitrary for the county staff to consider both residential and commercial uses as potential development scenarios. James Banks, Intervenor’s transportation planning expert, testified that if residential demand on Pine Island exceeds the capacity of commercial development to satisfy it, there would be an increase in traffic on Pine Island Road as residents leave the island to do their basic shopping. Conversely, if enough commercial development occurs on the island to consume the residential demands, the number of off-island trips would be reduced. Mr. Noble agreed that there might be an increase in trips off the island if there were insufficient commercial development to serve the residents on Pine Island. He testified that there is a planning principle supporting integrated and coordinated land-use development, and part of that principle is to capture as many trips as close to residential development as possible to avoid urban sprawl. Mr. Noble testified that the Board considered this principle in its deliberations, and that one Commissioner expressly stated that having additional commercial capacity on Pine Island might improve the transportation flow on Pine Island Road by decreasing the number of trips off the island. Policy 14.2.2 of the Lee County Plan states as follows: In order to recognize and give priority to the property rights previously granted by Lee County for about 6,800 additional dwelling units, the county shall consider for adoption development regulations which address growth on Pine Island and which implement measures to gradually limit future development approvals. The effect of these regulations would be to appropriately reduce certain types of approvals at established thresholds prior to the adopted level-of- service standard being reached, as follows: When traffic on Pine Island Road between Burnt Store Road and Stringfellow Boulevard reaches 810 peak hour, annual average two-way trips, the regulations shall provide restrictions on further rezonings which would increase traffic on Pine Island Road. When traffic on Pine Island Road between Burnt Store Road and Stringfellow Boulevard reaches 910 peak hour, annual average two-way trips, the regulations shall provide restrictions on the further issuance of residential development orders (pursuant to the Development Standards Ordinance), or other measures to maintain the adopted level of service, until improvements can be made in accordance with this plan. Lee County has not actually adopted regulations restricting rezonings and/or development orders based upon the 810/910 peak hour traffic thresholds on Pine Island Road between Burnt Store and Stringfellow Roads. Mr. Noble testified that the main reason for the adoption of Policy 14.2.2 was the county’s concerns regarding hurricane evacuation. He agreed that, even if the prescribed regulations had been adopted, they would restrict rezonings and development orders, not amendments to the comprehensive plan. Mr. Noble testified that the 810 and 910 vehicle limits are not standard calculations derived by the Department of Transportation, and cannot be mathematically derived from any planning model. Mr. Spikowski testified that the 810 and 910 vehicle per hour thresholds were based on roughly 80 percent and 90 percent, respectively, of the level of service proposed by either the Civic Association or Lee County staff at the time of the policy’s adoption. He further testified that the 810 trip per hour threshold has already been reached. James Banks, Intervenor’s expert in transportation planning, agreed with Mr. Noble that the 810 and 910 vehicle limits were essentially arbitrary thresholds adopted by the Board, and further testified that these thresholds are unrelated to the actual capacity of the road. Mr. Banks testified that Lee County’s own Concurrency Management Inventory and Projections indicate that the actual capacity of Pine Island Road between Burnt Store and Stringfellow Roads is 2,170 vehicles per hour at Level of Service "E", and that the road is currently operating at Level of Service "A," the highest designation. Mr. Banks testified that under any possible development scenario involving the parcel at issue in this proceeding, the impact would be no worse than Level of Service "B" for this portion of Pine Island Road, still well below the road's capacity. In summary, Petitioners failed to demonstrate by a preponderance of the evidence that PAM 98-01 will compromise evacuation of Pine Island in the event of a hurricane, or that the development that might ultimately be allowed pursuant to the Outlying Suburban designation will strain the operating capacity of Pine Island Road in the critical areas described above. Even assuming the additional traffic generated will push trips per hour beyond the 810 threshold and toward the 910 trip per hour threshold, Policy 14.2.2 by its terms places no restrictions on development; rather, it provides that the Board will consider adopting development regulations "to gradually limit future development approvals." Coastal High Hazard Area Closely related to the transportation and evacuation concerns is the issue of development limitations on barrier islands such as Pine Island. Goal 75 of the Lee County Plan and its implementing objectives and policies addresses development in coastal high- hazard areas. Objective 75.1 limits new development on barrier islands to densities that meet required evacuation standards, and states that allowable densities for undeveloped areas within the coastal high hazard areas will be considered for reduction. Mr. Noble testified that other Outlying Suburban lands and proposed residential development on Pine Island have been found to comply with Objective 75.1, but that there have only been a "couple" of such projects due to the sparse development activity on the island. Policy 75.1.2 prohibits rezonings to allow higher densities on barrier and coastal islands if the capacity of critical evacuation routes would be exceeded. Mr. Spikowski conceded that approval of three homes per acre on the seven acres proposed for residential development by Intervenor would not exceed the Lee County Plan’s stated evacuation times, but argued that taking a narrow view of this project in a vacuum is "the antithesis of planning," which calls for a view of the "big picture" rather than the individual project. Policy 75.1.4 states that density reductions for undeveloped areas within the coastal high-hazard areas will be considered, but does not require such reductions. In 1993, the Florida Legislature amended Section 163.3178(2)(h), Florida Statutes, to require that coastal elements of comprehensive plans designate "coastal high-hazard areas," defined as Category One evacuation zones, i.e., areas that must be evacuated for a Category One hurricane. Rule 9J- 5.003(17), Florida Administrative Code, was subsequently amended to reflect the statutory change. Petitioners contend that PAM 98-01 cannot be adopted at this time because the Lee County plan amendments defining the coastal high hazard area have not been finally adopted. Petitioners contend that adoption of PAM 98-01 would violate Rule 9J-5.002(8), Florida Administrative Code, which provides: Effect of Rule Amendments. No amendment to this chapter shall have the effect of causing plans or plan amendments which were adopted prior to the effective date of the amendment to become not in compliance. Minimum criteria contained in any amendment to this chapter shall be addressed in the first subsequent transmitted plan amendment which is directly related to or requires the application of those criteria. Petitioners contend that the quoted rule provision operates to give effect only to such plan amendments dealing with potential "coastal high-hazard areas" as were adopted prior to the amendment of Rule 9J-5.003(17), Florida Administrative Code. Petitioners argue that until the mandated definitions are finally adopted, PAM 98-01 would render the Lee County Plan out of compliance. Petitioners' reading of the quoted rule is strained and not persuasive. They are correct that the first sentence operates to grandfather plan amendments adopted prior to a given rule amendment. The language of the second sentence requires the local government to address rule amendments "in the first subsequent transmitted plan amendment." By its terms, the rule would have the practical effect of prohibiting interim plan amendments dealing with the subject matter of the rule amendments, as urged by Petitioners, because such an interim plan amendment would by definition not be the "first subsequent transmitted amendment." However, the second sentence does not address the situation presented here, of a small-scale plan amendment that is not formally "transmitted" to the Department of Community Affairs for review pursuant to Section 163.3184(3), Florida Statutes. "Transmittal" of a plan amendment triggers an array of procedural requirements that Section 163.3187(1)(c), Florida Statutes, is specifically designed to avoid. Petitioners’ argument on this point would effectively tie the small-scale plan amendment process irrevocably to the more cumbersome "large-scale" amendment process each time the Department of Community Affairs chooses to amend Chapter 9J-5, Florida Administrative Code, in such a way as to require compliant local plan amendments. This would defeat the Legislature’s purpose in disengaging small-scale amendments from many of the formalities of the plan amendment process. In any event, no party to this proceeding seriously contended that the property in question in fact lies outside of the coastal high-hazard area. The Staff Report, while acknowledging that the property is not yet "technically included" in the coastal high-hazard area, expressly treated the property as if it were, applying Goal 75 of the Lee County Plan in its analysis of the project. The Intervenor did not contest this treatment. These findings of fact accept that the subject property lies within the coastal high-hazard area, and that the property was treated by both Lee County staff and the Board as lying within the coastal high-hazard area, rendering moot Petitioners’ procedural arguments regarding the formal adoption of the new statutory definition. In summary, Petitioners failed to establish by a preponderance of the evidence that PAM 98-01 does not comply with statutory, rule, or Lee County Plan provisions dealing with development in coastal high-hazard areas. Natural Resources Intervenor’s 9.9 acre parcel, a pine flatwood community dominated by slash pine in the canopy with an understory of saw palmetto and other upland species, contains protected plants and animals. Uniformly distributed over the parcel are 551 beautiful pawpaws, as counted in the survey of the property conducted by Boylan Environmental Consultants on behalf of Intervenor. Petitioners did not dispute this count of the beautiful pawpaws on the site. The beautiful pawpaw has been designated an endangered species by the United States Fish and Wildlife Service and the Florida Game and Freshwater Fish Commission (now called the Florida Fish and Wildlife Conservation Commission). Lee County has designated the beautiful pawpaw as a protected species. Beautiful pawpaws are small plants with deep tubers, and are difficult to relocate. The beautiful pawpaws on the 9.9- acre parcel are currently healthy and viable. Intervenor’s 9.9-acre parcel also contains 10 active, 21 inactive, and 22 abandoned gopher tortoise burrows, as counted by Boylan Environmental Consultants and not disputed by Petitioners. Gopher tortoises are listed as a species of special concern by the Florida Fish and Wildlife Conservation Commission, and are listed as a protected species by Lee County. Gopher tortoise burrows are also appropriate habitat for indigo snakes and gopher frogs, both of which are listed as protected species by Lee County. Betsie Newton Hiatt, a senior environmental planner with Lee County and an expert in environmental planning, testified that she made a "cursory inspection" of the subject property and observed the beautiful pawpaws and gopher tortoise burrows on the site. She did not actually count the plants or burrows, but testified that she observed enough to consider the counts made by Boylan Environmental Consultants to be accurate. Ms. Hiatt testified that a management plan would be necessary prior to development of the parcel, and that it would be possible to submit a detailed management plan meeting all Lee County Land Development Code requirements for property that has beautiful pawpaws and gopher tortoise burrows and that lies within an Outlying Suburban land-use category. Ms. Hiatt testified that part of her duties is the implementation of Policy 77.2.6 of the Lee County Plan, which requires avoidance of needless destruction of upland vegetation communities through consideration during the site plan review process of alternative layouts of permitted uses. She testified that this policy is implemented in the Lee County Land Development Code through open space and indigenous preservation requirements. She finally testified that it would be possible to meet the open space requirement while developing the parcel at issue in this proceeding. Ms. Hiatt testified that the policy requires that approximately one third of the beautiful pawpaws found on a site be preserved in place, one third may be relocated in preservation areas, and one third may be removed. She testified that the open space requirement for commercial use of a 9.9-acre site would be about three acres, and that about 380 beautiful pawpaws could survive in this area. This would be about 69 percent of the 551 beautiful pawpaws found on the site, slightly more than the requisite two-thirds that must be preserved. Rae Ann Boylan, the expert in environmental land-use planning whose company performed the species survey on the property, testified that allowing the site to lay fallow would be as bad for the beautiful pawpaws as development, because other shrubs would eventually overgrow them without management of the site. Ms. Boylan also testified that a management plan would be required prior to development to accommodate the listed species. She testified that Lee County requires a developer to excavate the tortoises that can be found and place them out of harm’s way. She further noted that Policy 77.8.1 of the Lee County Plan provides for off-site mitigation, if unavoidable conflicts make on-site protection of the tortoises infeasible. Policy 5.1.2 of the Lee County Plan prohibits residential development where physical constraints or hazards exist, including hurricane hazards and environmental limitations. Mr. Noble of Lee County testified that residential development has been approved on Pine Island under this policy, and that the decision whether this policy applies to a given project is made at the time of development or site plan approval. Mr. Spikowski agreed that Policy 5.1.2 is a limitation on development, but argued that now is the time to evaluate the matter. He testified that if there are physical constraints or hazards that should stop approval of additional subdivisions on Pine Island, the county should not wait for the development order stage to draw the line. Mr. Spikowski explained that, as a practical matter, the development order stage consists of arguments about the details of the development, not whether it will occur at all. Mr. Spikowski's testimony is credited as a valid statement of planning philosophy, but not as stating a legal barrier to the Board's decision in this matter. In summary, Petitioners failed to demonstrate by a preponderance of the evidence that PAM 98-01 by its terms will have any adverse impacts on native upland vegetation, wildlife habitat, natural plant communities, or protected plant and wildlife habitat. Even after PAM 98-01 is enacted, the Lee County Plan provisions protecting all these natural resources will remain in place. Any subsequent development will be required to comply with the provisions of the Lee County Plan and the State Comprehensive Plan establishing protection of the resources. Data and Analysis Section 163.3177(8), Florida Statutes, requires that all elements of a comprehensive plan be based upon data appropriate to the element involved. Rule 9J-5.005(2)(a), Florida Administrative Code, provides in relevant part: All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the plan or plan amendment at issue. The local government is not required to engage in original data collection, but the data used must be the best available. Rule 9J-5.005(2)(b) and (c), Florida Administrative Code. Rule 9J-5.006(2)(c), Florida Administrative Code, provides that the Future Land-use Element, including the FLUM and amendments thereto, must include an analysis of the amount of land needed in each category of land-use to accommodate the projected population. This analysis must estimate the gross acreage needed by land-use category and their densities and intensities, and describe the methodology used to arrive at those estimates. The preponderance of the evidence establishes that there was sufficient data and analysis to permit the Board to conclude that PAM 98-01 was justified. As found above, even the most conservative estimate of Mr. Spikowski, the expert retained to oppose the amendment, conceded that the data indicated there remains a need for 27 acres of vacant land for commercial development on Pine Island before the year 2020. The Commercial Study relied upon by Petitioners also concedes that much of the property currently zoned for commercial uses is not in fact appropriate for such uses. The evidence establishes that Lee County itself has historically recognized this fact but has declined to expend the resources needed to update the zoning on Pine Island, largely due to the overall paucity of development activity on the island. The evidence in this proceeding establishes that the property at issue is the only commercially-zoned property adjacent to the Pine Island Center that was not included in that center during the 1989 Plan update process, presumably because it was vacant property at the time. Despite all the testimony regarding properties on Pine Island having inappropriate commercial zonings, not one witness suggested that the property at issue should not be zoned commercially. At least one member of the LPA recognized the appropriateness of this property for development "in the long run," but the LPA voted against the amendment to preserve the clear demarcation between urban and rural uses in the current FLUM. However, even Mr. Spikowski conceded that the clear line between urban and rural uses was compromised at the outset to allow for existing uses, and that the FLUM change contemplated by PAM 98-01 would merely add another "blip" to a line on the map that already contains breaks and changes between urban and rural uses. Mr. Spikowski’s argument that PAM 98-01 would create urban sprawl is thus overstated. PAM 98-01 does not designate uses in excess of demonstrated need. It does not appreciably compromise the clear separation between rural and urban uses. It does not discourage or inhibit infill development. In fact, PAM 98-01 could just as plausibly be said to constitute infill in the vicinity of the Pine Island Center; at the very least, it does not leap over undeveloped lands that are available and suitable for development. The subject property lies between commercial uses to the north and a public facility use, the RO plant, to the south. PAM 98-01 does not fail to protect environmentally sensitive habitat, because the beautiful pawpaws and the gopher tortoise burrows on the site will be dealt with as provided in the Lee County Plan during any subsequent development and site planning of the property. Mr. Spikowski’s ultimate opinion that PAM 98-01 is "illegal" is based on his view, also expressed in the Staff Report, that there is "no compelling reason" to adopt the requested amendment. Mr. Spikowski testified that, because Pine Island has an overallocation of commercial land, anyone wishing to add to the total has "a really high burden to show that this is so much better located than the existing land, or [that] other land should be eliminated in favor of this land, and that burden hasn’t been met." As explained in the conclusions of law below, this is not the standard for judging the legality of a small scale development amendment. Mr. Spikowski’s policy disagreement with the Board’s action has been noted and fully considered, but his judgment that PAM 98-01 is "illegal" cannot be credited. In summary, Petitioners failed to demonstrate by a preponderance of the evidence that PAM 98-01 is not supported by relevant and appropriate data and analysis as required by Section 163.3177(8), Florida Statutes, and Rule 9J-5.005(2), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding small scale development amendment PAM 98-01 to be in compliance. DONE AND ENTERED this 27th day of December, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1999. COPIES FURNISHED: Thomas W. Reese, Esquire 2951 61st Avenue, South St. Petersburg, Florida 33712 Thomas L. Wright, Esquire Timothy Jones, Esquire Assistant County Attorneys Lee County, Florida 2115 Second Street Post Office Box 398 Fort Myers, Florida 33902 Pete Doragh, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 60259 Fort Myers, Florida 33906-6259 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundaries of the Tomoka Community Development District filed on November 23, 2005 (Petition). The purpose of the Petition is to add 1,122 acres that were intended to be included in the Community Development District (CDD, or District) when it was created in October 2003 but were omitted through the inadvertent use of an erroneous legal description.
The Issue The issue is whether the Amended Petition to Merge the Seven Oaks Community Development District I and the Seven Oaks Community Development District II (Amended Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2008),1 and Florida Administrative Code Rule Chapter 42-1.2 The purpose of the hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
Findings Of Fact Background Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility to administer and enforce the provisions of Chapter 380, Florida Statutes, and the rules promulgated thereunder. Respondent, Board of County Commissioners of Monroe County (Monroe County), is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for implementation of the Monroe County Comprehensive Plan and Land Development Regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Between January 6, 1988, and January 12, 1988, Monroe County cleared, graded and filled a .6 mile stretch of road between Key Deer Boulevard and Ixora Road on Big Pine Key, Monroe County, Florida. As sited, the project was within the Florida Keys Area of Critical State Concern and the National Key Deer Wildlife Refuge, and altered the character of the road from a private access road, which provided a right of ingress and egress for the landowners within Pine Key Acres Section 1 (Pine Key Acres), to a public collector road, which was capable of carrying traffic from local roads outside Pine Key Acres to major thoroughfares. On January 29, 1988, the Department issued a notice of violation to Monroe County which, among other things, directed Monroe County to cease work on the road project and to conform its activities to the land development regulations approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Monroe County filed a timely request for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, and contended that the road work constituted routine maintenance or improvement of an existing road and, therefore, did not constitute development as defined by Chapter 380, Florida Statutes. Thereafter, the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. The Project at Issue The road work at issue in this case was constructed along the easterly .6 mile portion of the proposed right-of-way for the Cross Big Pine Key Arterial Access Road (Arterial Road). That Arterial Road would run east and west approximately 1.2 miles, through a corridor located approximately one-half mile north of and parallel to US 1, and would provide the developed residential areas of Big Pine Key, located at the extreme east and west ends of the proposed road, with an alternate to travel on US 1 to reach the central shopping area located immediately north of US 1 on Key Deer Boulevard. As proposed, the right-of-way follows a corridor along a 50-foot wide private easement, within which existed poorly maintained private access roads. The property north and south of these dirt roads, with the exception of a prison located at the southwest corner of the right-of-way and Key Deer Boulevard, is sparsely developed with single family residences, is natural habitat for the Key Deer, and is located immediately south of the main reservation of the National Key Deer Wildlife Refuge. The Arterial Road was conceived in 1985, following a six-month study by a Tripartisan Road Committee formed at the suggestion of County Commissioner Ed Swift to study alternate routes to move traffic across the island that would avoid the congestion experienced on US 1. The committee, composed of three members each from the Lower Keys Chamber of Commerce, Big Pine Civic Association, and Big Pine Concerned Citizens, ultimately recommended the proposed route to Monroe County in July 1985. This recommendation was made without benefit of a professional traffic study or environmental study to assess the need for or impact of the road. Monroe County approved the recommended route in July 1985, and authorized the committee to contact the landowners who held title to the land underlying the proposed right-of-way and to see if they could be persuaded to deed such property to the county for construction of the road. As previously noted, the proposed right-of-way followed a 50-foot wide private easement, and the landowners to the north and south of the proposed right-of-way owned, respectively, 25 feet of such lands, subject to the private access easement for adjacent land owners. In 1986, as the committee was endeavoring to acquire title to the right-of-way on behalf of Monroe County, Monroe County was developing its comprehensive plan and land development regulations for submittal to the Department as required by Chapter 380, Florida Statutes. Pertinent to this case, the plan and regulations contained no reference to the Arterial Road and permitted only one single family residence per gross acre in suburban residential areas, and excluded public rights-of-way from that calculation. Accordingly, since the lots along the proposed right-of-way were largely one- acre lots, including the 25 foot easement, the lot owners were at peril of rendering their lots unbuildable if they deeded such portions of their lands to the county. To alleviate this impediment, Monroe County, at some time prior to February 23, 1986, "assured" the committee that credit for the square footage deeded to the county would be included in calculating the size of the lot for building purposes. On February 28, 1986, Monroe County adopted its comprehensive plan and land development regulations (Land Use Plan), and forwarded them to the Department for review. On September 15, 1986, the County's Land Use Plan was approved by the Administrative Commission by rule and became effective. The Land Use Plan adopted by Monroe County and approved by the Administration Commission contained no reference or description of the proposed Arterial Road. It further permitted only one single family residence per gross acre in suburban residential areas, and still excluded public right-of-way from that calculation. On June 6, 1986, while its Land Use Plan was pending Department and Commission approval, Monroe County, in apparent recognition of the adverse impact its Land Use Plan would have on lot owners along the proposed road, adopted Ordinance No. 019-1986. Pertinent to this case, the ordinance provided: Section 1. Where a dedication is made for a county road and accepted by the county, the property so dedicated shall be taken into account by the proper county authorities and credited to the dedicating property owner for the purpose of computing density and/or area when and if the property owner applies for an improvement permit for the property. This ordinance was never submitted to the Department for approval, and was not a part of the Land Use Plan approved by the Administration Commission on September 15, 1986. Despite the fact that the Arterial Road was not included in the transportation element or any other element of its comprehensive plan, Monroe County engaged the services of Post, Buckley, Schuh & Jernigan to prepare the proposed right-of-way map for the proposed road. This map was prepared and filed with the Clerk of the Circuit Court, Monroe County, on March 26, 1987. On February 2, 1988, Monroe County adopted Resolution No. 059-1988 to "address" its failure to include the Arterial Road in its Land Use Plan. Pertinent to this case, that resolution provided: WHEREAS, the Board of County Commissioners of Monroe County adopted a Comprehensive Plan and Land Development Regulations on February 28, 1986, and said Plan and Regulations became effective on September 15, 1986, and WHEREAS, Section 13-101(E) of the Land Development Regulations provides that the Board of County Commissioners may correct typographical and drafting errors in the Regulations at any regular meeting without posted notice or public hearing provided that notice of such corrections is transmitted to the Florida Department of Community Affairs within thirty days of the adoption of such corrections: now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that: Section 1. The proposed "Cross Big Pine Key Arterial Access Road" is consistent with the transportation element of the Monroe County Comprehensive Master Land Use Plan, and by prior vote of the Board of County Commissioners of Monroe County, Florida, was identified as a proposed road to be incorporated in the Monroe County Comprehensive Master Land Use Plan as a secondary collector road. Section 2. This Resolution correcting scrivener's errors and omissions described in section one shall be construed nunc pro tunc to February 28, 1986. Section 3. That the Clerk of the Board is hereby directed to provide notice of the adoption of this Resolution to the Department of Community Affairs within thirty days of adoption and the correct (sic) be appropriately noted in the permanent records of Monroe County relating to the Land Use Plan and Maps. This resolution was never submitted to the Department, and consequently never approved by it. By January 6, 1988, Monroe County had received quit claim deeds to the land underlying the 50-foot right-of-way from all the land owners along that portion of the proposed route lying east of Key Deer Boulevard to the intersection of Ixora and Hibiscus Roads, except the Trustees of the internal Improvement Trust Fund (Trustees) which owned the land underlying the area immediately prior to and at the intersection of the proposed road and Key Deer Boulevard. 1/ No proof was offered at hearing that the County had received any deeds for the right-of-way of the proposed road from its intersection with Key Deer Boulevard west to its terminus at Ships Way, and no construction has been undertaken along that .6 mile stretch of roadway. The right-of-way acquired by Monroe County had been in existence since it was created in 1973 as a private easement and dedicated to the landowners in Pine Key Acres for use as a road for ingress and egress. 2/ The road the developer constructed at that time was of limited stature, and consisted of a 30-foot wide simple fill road through the pine woods that characterize the area. Over the years, the landowners did not maintain the road, and it sank into a severe state of disrepair. Consequently, when the road was acquired by Monroe County it was severely potholed and rutted, partly overgrown with vegetation, and of insufficient width to allow the passage of cars in some areas. At the extreme easterly end of the road, where it now connects with the intersection of Ixora and Hibiscus Roads in the Whispering Pines Subdivision, a dump existed which contained tree stumps from the original creation of the road, and discarded refrigerators, air conditioners, cars and construction debris. This debris severely restricted the access to the road at its eastern terminus, and few ventured through it from the developed easterly part of Big Pine Key. Because of the limited access to the road at its eastern terminus, its severe state of disrepair, and the few residences that existed along its length, the easement running from Key Deer Boulevard to Wilder Road and from Wilder Road to Ixora Road received little traffic. What traffic it did receive was, because of the road's character, required to travel at an exceedingly limited speed. On January 6, 1988, Monroe County commenced construction on the subject road between Key Deer Boulevard and Ixora Road. While such construction did not conform to the design or construction standards for the Arterial Road evidenced by the proposed right-of-way map filed by the County, the compelling proof demonstrates that it does conform to and is in furtherance of the County's announced desire to construct an alternative access road at the subject location. Accordingly, while not the Arterial Road evidenced by the proposed right-of-way map filed by the County, the subject road is in furtherance of the County's plan to create such a road, albeit of a different design and construction standard than evidenced by the proposed right-of-way map. 3/ Between January 6 and 12, 1988, Monroe County's surveyor staked the centerline of the road right-of-way, and within 15 feet on either side of the centerline the County's work crews laid down a new bed of fill from Key Deer Boulevard to Ixora Road, rolled it, and would have applied a paving material but for the Department's cease and desist order. In the process, the County cleared vegetation from the right-of-way. At the eastern terminus of the road, the County also removed the debris from the dump area, and connected the road to the residentially developed areas of eastern Big Pine Key. In so doing, the county "straightened out the edges of the road" (created a road where it no longer existed because of lack of maintenance), and created a public access road from Ixora Road to Key Deer Boulevard capable of handling traffic at significant speeds. Notably, a portion of that roadway was created over the lands of the Trustees, to which Monroe County held no title and, overall, upon lands dedicated as a private access way. Monroe County undertook the aforementioned work without benefit of a building permit or certificate of compliance, and, accordingly, never rendered such a permit or certificate to the Department. 4/ Big Pine Key Area of Critical County Concern Section 11-109, Monroe County Land Development Regulations, establishes the Big Pine Key Area of Critical County Concern (Area of Critical Concern), and provides: Purpose. The purpose of the Big Pine Key Area of Critical County Concern is to establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the federal Endangered Species Act. Focal Point Planning Program. 1. Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following: The reasonable investment backed expectations of the owners of land within the Big Pine Key Area of Critical Concern; The habitat needs of the Florida Key Deer; The conflicts between human habitation and the survival of the Florida Key Deer; The role and importance of freshwater wetlands in the survival of the Florida Key Deer; Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and Specific implementation programs for the Big Pine Key Area of Critical County Concern. Interim Regulations. Notwithstanding any other provisions of these land development regulations, no development shall be carried out on the Big Pine Key Area of Critical County Concern prior to the completion of the focal point planning program required by Section C of this designation and the adoption of amendments to the Monroe County Comprehensive Plan and these land development regulations except in accordance with the following: 1. No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single family detached dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more. To date, the focal point planning program has not been completed by Monroe County, and that portion of the subject road running between Key Deer Boulevard and Wilder Road is within the Area of Critical Concern. The Florida Key Deer is a unique species of deer listed as endangered by both the state and federal government. The official estimate of the total population of these deer is 250-300, most of which live on Big Pine Key. The federal government has designated most of Big Pine Key as the National Key Deer Refuge, including the area through which the subject road runs. The area surrounding this road is prime habitat for the Key Deer because of the large number of endemic plants that are necessary elements of the Key Deer's diet. The primary threat to the continued existence of the Key Deer is the destruction of habitat and road kills (the killing of the animal by a motor vehicle). Construction of the subject road will adversely impact the Key Deer's chance of survival since it bisects the deer's natural foraging area, and will permit high speed travel and increased traffic across a road that previously accommodated limited local traffic at moderate speeds. Maintenance or development? Pertinent to this case, Sections 6-101 and 6-102, Monroe County Land Development Regulations (MCLDR) provide that no "development" may occur within the county except pursuant to a building permit and upon the issuance of a certificate of compliance with existing development regulations. "Developer" and "development" are defined by Section 3.101, MCLDR, as follows: DEVELOPER means any person, including a governmental agency, undertaking any development as defined in this Plan. DEVELOPMENT means the carrying out of any building activity, the making of any material change in the use or appearance of any structure or land or water.... * * * (c) For the purpose of these regulations the following operations or uses shall not be taken to involve "development": * * * (4) A change in the ownership or form of ownership of any parcel.... * * * (6) ... the maintenance of public rights of way and private accessways existing on the effective date of these Land Development Regulations or approved private rights of way. At hearing, Monroe County contended that the work it undertook on the subject road was not "development", as defined by the MCLDR because it constituted "maintenance" of a private accessway existent when its Land Use Plans became effective. Based on the findings which follow, Monroe County's contention is rejected. The 50 strips of land that Monroe County took title to was burdened with "an easement for the purpose of use as a road for ingress and egress into and from Pine Key Acres Section 1, Page 1," and dedicated to all the lot owners in Pine Key Acres. The simple fill road established in 1973, and still existent, through in disrepair, when the County's Land Use Plan became effective, was a private accessway designed and maintained, if at all, to provide access to Pine Key Acres property, of relatively low average traffic volume, of limited continuity and not for through traffic. As such, although a private accessway, the road meets the definition of "local road," as defined by 16-21(5), Monroe County Code. By the work already performed by the County on the subject road, it has changed the character and function of the roadway from a local road, primarily used by residents who lived along its length, to a "collector road." As such, the road now gathers an increased traffic volume from local roads within the eastern subdivisions of Big Pine Key, and moves it at increased speeds to arterial roads, which are, like Key Deer Boulevard and Wilder Road, main traffic arteries carrying relatively heavy volumes of traffic for long distances. Had the County not been halted from paving the road, the change in character and function would have been intensified. Because the County's construction activities were not designed to maintain, and did not maintain, the character and function of the road as a private accessway, they cannot be considered as "maintenance" of a private accessway, but were "development" as that term is defined by the County's Land Use Plans. 5/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered requiring the following corrective actions: Monroe County cease any and all construction on the subject road and refrain from commencing any further construction to create an arterial access road on Big Pine Key until it has complied with the provisions of its Land Use Plan and Chapter 380, Florida Statutes. That until such time as Monroe County has complied with its Land Use Plans and Chapter 380, Florida Statutes, that it erect such barriers, signs or other impediments, or take such other action as may be necessary, to limit the volume and speed of traffic on the road it has developed to those conditions which existed prior to its development. Monroe County carry out the Big Pine Key focal point planning program as required by Section 11-109, MCLDR, and strictly adhere to and enforce section 11-109D, MCLDR, which prohibits development in the area of Critical County Concern, except for single family detached dwellings, until its land use regulations are amended in accordance with Chapter 380, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of May 1989. WILLIAM J. KENDRICK 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 9th day of May, 1989.
The Issue The issue is whether the land development regulations (LDRs) adopted by Respondent, Monroe County (County), by Ordinance Nos. 008-2006, 009-2006, 010-2006, 011-2006, and 013- 2006, and which were approved (with one minor exception) by five Final Orders issued by Respondent, Department of Community Affairs (Department) on June 5, 2006, are consistent with Section 380.0552(7), Florida Statutes (2006)1.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Parties The County is a non-chartered county and a political subdivision of the State. Because the County is located within the Florida Keys Area, which is a statutorily designated Area of Critical State Concern, all LDRs adopted by the County must be approved by the Department. §§ 380.05(6) and 380.0552(9), Fla. Stat. The LDRs are codified in the Monroe County Code. The Department is the state land planning agency with the power and duty to exercise general supervision of the administration and enforcement of the Area of Critical State Concern program, and to approve or reject LDRs adopted by local governments within an Area of Critical State Concern. Petitioner, Florida Keys Citizens Coalition, Inc., is a not-for-profit Florida corporation whose address is 10800 Overseas Highway, Marathon, Florida. The parties have stipulated that there are sufficient facts to establish that the substantial interests of FKCC could be adversely affected by the LDRs being challenged and thus FLCC has standing to initiate this action. Petitioner, Protect Key West and the Florida Keys, Inc., d/b/a Last Stand, is a not-for-profit Florida corporation whose address is Post Office Box 146, Key West, Florida. The parties have stipulated that there exists a sufficient factual basis to demonstrate that its substantial interests may be affected by this proceeding, and thus it also has standing to bring this action. Background This case involves a challenge to five Final Orders (DCA06-0R-123, DCA06-0R-124, DCA06-OR-125, DCA06-OR-126, and DCA-0R-127) entered by the Department on June 6, 2006, under the authority of Sections 380.05(6) and 380.0552(9), Florida Statutes. Those Orders approved, with one minor exception, five County Ordinances (Ordinance Nos. 008-2006, 009-2006, 010-2006, 011-2006, and 013-2006), which adopted LDRs implementing a so- called "Tier System" in order to meet natural habitat protection requirements. In essence, the LDRs place all undeveloped parcels of land in the unincorporated County into one of three categories, and then adopt development standards applicable to each category. Petitioners have challenged ninety of the tier maps (which contain the tier designations of multiple parcels in those maps) and many of the related development standards. In addition, the Ordinances allow the issuance of certain residential allocations for building permits in excess of previously established annual caps, for up to five years into the future for affordable units. The Keys were originally designated an Area of Critical State Concern by the Administration Commission in 1975 and re- designated by the Legislature in 1986. See § 380.0552, Fla. Stat. The Legislative Intent section and the Principles for Guiding Development codified in Section 380.0552(9), Florida Statutes, together require an effective land use management system that protects the natural environment and character of the Keys, maintains acceptable water quality conditions, ensures adequate public facility capacity and services, provides adequate affordable housing, supports a sound economic base, protects constitutional property rights, and requires adequate emergency and post-disaster planning to ensure public safety. Approximately sixty to seventy percent of the land in the Florida Keys is owned by the public, fifteen percent is already developed, and only fifteen to twenty percent is privately owned and not developed. If the mainland portion of the County (which includes a portion of the Everglades National Park) is excluded, over ninety-nine percent of land is in public ownership. The Florida Keys are a long arc of islands extending more than one hundred miles from just north of Key Largo to Key West. Excluding the City of Key West, the mainland portion of the Keys is approximately 80,000 to 100,000 acres. The Keys differ in size, type of plant communities, and geological characteristics and are generally divided into the Upper, Middle, and Lower Keys. A County staff report describes the Upper Keys as extending from Mile Marker 91 (Tavernier Creek Bridge) northward to Mile Marker 112, excluding the Ocean Reef subdivision; the Middle Keys as the unincorporated area stretching from Mile Marker 60 (Duck Key) through Mile Marker 71 (Long Key); and the Lower Keys as including all of the islands from Mile Marker 4 (Stock Island) to Mile Marker 40 (Little Duck Key), excluding Big Pine and No Name Keys. See Respondents' Exhibit 9, pages 11-16. Most of the parcels in dispute here are in the Upper Keys. The Upper and Middle Keys are the product of an old coral reef formation, while the Lower Keys consist of solidified limestone sand. The coral reef formation extends like a spine much of its way down the Keys. At the higher elevations in the Upper and Middle Keys (which approach five to ten feet above sea level) are uplands, consisting of tropical hardwood hammocks. As the elevation drops, different habitat occur, including transitional wetlands, salt marshes, mangroves, and eventually shallow water seagrass beds. (Surprisingly, the highest elevation in the Keys is Solares Hill in Key West, which is eighteen feet above sea level.) Upland plant communities in the Keys include a variety of hardwood trees, including gumbo-limbo, mahogany, mastic, dogwood, and tararind, and specialized shrubs, vines, and ground cover. Tall or high hammocks occur on the connected islands, mostly in the Upper Keys, and on offshore mangrove-fringed islands that provide habitat to a wide range of wildlife and maintain water quality and other functions. Shorter, denser low hammocks are found in the Lower Keys. Regardless of size, though, hammocks in one part of the Keys are important to hammocks in other parts of the Keys due to the seed dispersal role played by neo-tropical birds, which migrate every year from North America through the Keys and into the Caribbean and Central and South America. The Keys host a vast array of unique endemic animal and plant communities, over one hundred of which are listed by the federal and state governments as endangered, threatened, or of special concern. Among these are the Florida Key deer, marsh rabbit, silver rice rat, Key Largo woodrat, and Key Largo cotton mouse. In addition, the American crocodile inhabits the Keys, and the tree snail is now confined to just ten or twelve small hammocks. Also, the white crowned pigeon is a migratory bird that uses the Keys in the summertime as a migratory stopping point and is listed as a species "of concern" by the State. The Current Regulations The current version of the LDRs includes a residential Rate of Growth Ordinance (ROGO) found in Sections 9.5-120 through 9.5-123, a non-residential Rate of Growth Ordinance (NROGO) in Section 9.5-124, and environmental standards which focus on a Habitat Evaluation Index (HEI) codified in Sections 9.5-335 through 9.5-349. A building permit for a residential dwelling unit cannot be issued unless the dwelling unit has received a ROGO allocation. § 9.5-120.1. A building permit for non-residential floor area cannot be issued without an NROGO allocation. § 9.5- 124.1(a). The ROGO and NROGO allocations are issued based upon a competitive point system, with the applicants who receive the most points receiving the limited number of annual permit allocations. §§ 9.5-122(a), 9.5-122.2, 9.5-124.4, and 9.5- 124.6. The ROGO point system consists of eighteen evaluation criteria, which assign positive points for factors such as infrastructure availability, lot aggregation, density reduction, land dedication, affordable housing, and water and energy conservation. They also assign negative points for factors such as the presence of significant or critical habitat, threatened or endangered species, and coastal high hazard area. § 9.5-122.3. For example, ten negative points are assigned for federal coastal barrier resource system lands due to the environmental importance of coastal resources, while all offshore islands and conservation land protection areas receive ten negative points. NROGO utilizes a similar point system with thirteen evaluation criteria. § 9.5-124.8. The habitat protection criterion of ROGO and NROGO is based upon the type and quality of habitat on the parcel proposed for development. §§ 9.5-122.3(a)(7) and 9.5-124.8(a)(4). If a development permit is sought for land classified on the existing conditions map as slash pineland or tropical hardwood hammock, the habitat must be analyzed under the HEI system. §§ 9.5-336 through 339.1. (The existing conditions map is a map reflecting the "conditions legally in existence on February 28, 1986" and consists of 1985 Florida Department of Transportation aerial photographs at a scale of one inch equal two hundred feet depicting habitat types coded according to the system set forth in the Comprehensive Plan (Plan). It is intended to serve only as a general guide to habitat types "for the purpose of preliminary determination of regulatory requirements." § 9.5- 336.) The HEI consists of an elaborate point system covering nineteen pages in the LDRs and requires a site visit to each parcel by a qualified biologist. §§ 9.5-339.1 through 9.5-343. Through experience and the passage of time, the County and Department have become aware of deficiencies in the ROGO- NROGO-HEI point systems. The existing conditions map is based on more than 20-year-old data, and some areas that did not have valuable habitat at that time have regrown into valuable hammock. The HEI criteria are complicated and difficult to apply consistently. The HEI evaluates the habitat parcel-by-parcel and allows scattered development within large patches of habitat. The HEI criteria are also subject to varied interpretations by individual biologists. The Work Program and Carrying Capacity Study The current Plan is a result of a series of plan amendments made in order to bring the Plan into compliance with Chapter 163, Florida Statutes. After a lengthy review and hearing process that lasted a number of years, the Department found the County's initial comprehensive plan out of compliance, entered into a compliance agreement with the County requiring a complete rewrite based upon an overall carrying capacity approach, and then found the rewritten plan out of compliance. Eventually, a Final Order requiring that the County adopt additional remedial amendments was entered by the Administration Commission in 1995. See Department of Community Affairs v. Monroe County et al., DOAH Case No. 91-1932GM (DOAH July 17, 1995, Admin. Comm. Dec. 12, 1995), 1995 Fla. ENV LEXIS 129. Under the authority of Section 380.0552(9), Florida Statutes, the Administration Commission has promulgated parts of the County's Plan through the adoption of Florida Administrative Code Rule Chapter 28-20. One of those provisions is the Work Program in Policy 101.2.13, which includes, among others, tasks regarding preservation of upland habitat and affordable housing. These tasks are enumerated on a year-by-year basis, beginning with Year One, which ended on December 31, 1997, and continuing through Year Ten, which runs from July 13, 2006, through July 12, 2007. The Annual Work Program is a central component of the Plan's remedial amendments (required by the Administration Commission in 1995) and requires the County to implement the Florida Keys Carrying Capacity Study (FKCCS) with appropriate Plan and LDR changes. The purpose was to ensure that the zoning map maintained the carrying capacity of the Keys in perpetuity. The FKCCS was completed over a period of six years at a cost of six million dollars. The contractor, URS Corporation, completed the FKCCS and the Carrying Capacity/Impact Assessment Model (CCIAM), a separate component to be used in forecasting land use scenarios. A panel of external experts was used to peer review the scope of work. The National Research Council of the National Academy of Sciences reviewed the CCIAM and FKCCS and, as a result of its review, adjustments were made to the CCIAM. The Council's review concluded that overall, due to data constraints and other issues in certain portions of the CCIAM, the model proved insufficient to develop a comprehensive carrying capacity framework that would allow for undisputable determinations of whether future development scenarios fall within the carrying capacity of the Florida Keys. The marine module, the most data deficient, was subsequently removed from the CCIAM. The study was completed in September 2002. The FKCCS' chief findings were that: Development in the Keys has surpassed the capacity of the upland habitats to withstand further development; Any further encroachment into areas dominated by native vegetation would exacerbate habitat loss and fragmentation. The lower Keys marsh rabbit and silver rice rat are highly restricted and likely could not withstand further habitat loss without facing extinction. Development in the Keys has surpassed the capacity of upland habitats to withstand further development. The secondary and indirect effects of development further contribute to habitat loss and fragmentation. Any further development in the Keys would exacerbate secondary and indirect impacts to remaining habitat. Virtually every native area in the Keys is potential habitat for one or more protected species. The FKCCS suggested four main guidelines for future development in the Keys: Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Florida Keys. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. The FKCCS also considered a fiscal analysis. The fiscal module predicted that the programs needed to protect the Keys would be very expensive, with a disproportionate increase in government expenditures compared to the increase in population. The very high per capita costs of the needed programs is one factor to be considered as the County implements the FKCCS. The FKCCS recognizes that development pursuant to the then-existing comprehensive plan and LDRs is already extremely restricted. It also recognizes that additional growth with some associated environmental impact would be acceptable in areas that are already disturbed or ripe for redevelopment. In 2001, the County adopted Goal 105 of the Plan (also known as the Smart Growth Goal) to provide a framework within the 2010 Plan to implement the FKCCS and a 20-year land acquisition program. The initial phase of implementing this Goal called for the drafting and adoption of "Tier maps" to be used as guidance for the County's land acquisition program. The Goal contemplates that the Tier maps would designate and map properties into one of three general categories: Conservation and Natural Area (Tier I), Transition and Sprawl Reduction Area (Tier II), and Infill Area (Tier III). Additional work tasks contemplated in the implementation of Goal 105 (and thus the FKCCS) included amendment of the zoning map with a tier overlay and supporting text amendments to the LDRs, revising the permit allocation system, developing a land acquisition strategy, and a land maintenance program. These tasks are more specifically identified in a series of policies adopted at the same time to assist in the implementation of Goal 105. According to the Department, if the regulations at issue here are found to be consistent with Chapter 380, Florida Statutes, the requirements of the FKCSS will be satisfied, and there is no further requirement to make any further changes to the Plan or LDRs to implement the FKCSS. In 2004, the Administration Commission began the process for adopting a new rule, which later became effective in 2005 as Florida Administrative Code Rule 28-20.110,4 to add the following tasks to the existing Work Program in Policy 101.2.13 of the Plan related to habitat protection: In Year 8: Review and revise (as necessary) the Conservation and Natural Areas Map, Initiate acquisition strategy for lands identified outside the Conservation and Natural Areas identified as worthy of protection, Begin public hearings for Conservation and Natural Areas boundaries, Conclude public hearings for the adoption of the amended Conservation and Natural Areas Boundaries, Adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involves the clearing of any portion of an upland tropical hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two or more acres in size located within a Conservation and Natural Area, Adopt amendments to the comprehensive plan and land development regulations to enact overlay designations, and eliminate or revise the Habitat Evaluation Index, and modify the ROGO/NROGO system to guide development away from environmentally sensitive lands, Amend land development regulations to prohibit the designation of Conservation and Natural Areas (Tier I) as a receiver site for ROGO exempt development from sender sites; and to further limit clearing of upland native habitat that may occur in the Natural Areas (Tier I) and the Transition and Sprawl Reduction Area (Tier II) upon designation by the County, and Develop Land Acquisition and Management Master Plan and address both funding and management strategies. In 2005, the County adopted the plan amendments contemplated by Year 8 of the Work Program. These plan amendments delete the requirements for the HEI, simplify ROGO and NROGO, and adopt the Tier designation criteria. Relevant to this proceeding are Goal 205, Objective 205.1, and Policy which read as follows: GOAL 205 The health and integrity of Monroe County's native upland vegetation shall be protected and, where possible, enhanced. Objective 205.1 Monroe County shall utilize the computerized geographical information system (GIS) and the data, analysis and mapping generated in the Florida Keys Carrying Capacity Study (FKCCS), FMRI, habitat maps and field evaluation to identify and map areas of upland vegetation in the Florida Keys and to prepare Tier Overlay District Maps as required in Policy 105.2.2. Policy 205.1.1 The County shall establish the following criteria at a minimum to use when designating Tiers: Land located outside of Big Pine Key and No Name Key shall be designated as Tier I based on the following criteria: Natural areas including old and new growth upland native vegetated areas, above 4 acres in area. Vacant land which can be restored to connect upland native habitat patches and reduce further fragmentation of upland native habitat. Lands required to provide an undeveloped buffer, up to 500 feet in depth, if indicated by appropriate special species studies, between natural areas and development to reduce secondary impacts; canals or roadways, depending on size may form a boundary that removes the need for the buffer or reduces its depth. Lands designated for acquisition by public agencies for conservation and natural resource protection. Known locations of threatened and endangered species. Lands designated as Conservation and Residential Conservation on the Future Land Use Map or within a buffer/restoration area as appropriate. Areas with minimal existing development and infrastructure. Lands on Big Pine Key and No Name Key designated as Tier I, II, or III shall be in accordance with the wildlife habitat quality criteria as defined in the Habitat Conservation Plan for those islands. Lands located outside of Big Pine Key and No Name Key that are not designated Tier I shall be designated Tier III. Designated Tier III lands located outside of Big Pine Key and No Name Key with tropical hardwood hammock or pinelands of one acre or greater in area shall be designated as Special Protection Areas. Lands within the Ocean Reef planned development shall be excluded from any Tier designation. These plan amendments were found in compliance by the Department, were not challenged, and are part of the presently effective Plan. Year 8 of the Work Program also required that the County amend its LDRs to implement the Tier system. The LDRs being challenged here are intended to meet that requirement. The Challenged Ordinances After a series of eight public hearings that took place between December 2004 and March 2006, the County adopted four Ordinances on March 15, 2006, and a fifth Ordinance on March 21, 2006. Those Ordinances amended the LDRs. More specifically, on March 15, 2006, the County adopted Ordinance No. 008-2006, which deleted requirements for the preparation of the HEI for properties containing hammock, requires an existing conditions report, vegetation survey, and grants of conservation easements, and limits clearing of native upland vegetation dependent on the tier system designation. It also proposed to delete Section 9.5-342, which establishes when a hammock is classified as a Palm Hammock. In a Final Order dated June 5, 2006, the Department determined that with the exception of the proposed deletion of Section 9.5-342, the Ordinance was consistent with the Principles for Guiding Development as a whole, and was therefore approved. The County has not challenged that portion of the Final Order which disapproved the deletion of Section 9.5-342. On March 15, 2006, the County also adopted Ordinance No. 009-2006, which implements Goal 105 of the Plan by utilizing tier overlay maps as a basis for the County's competitive point system; providing revised criteria for the building permit allocation system; allowing the transfer of development exempt from the Residential ROGO provided the receiver site is located in Tier 3, is not in a velocity zone, and requires no clearing; and creating an appeal process. On June 5, 2006, the Department issued a Final Order finding that the Ordinance was consistent with the Principles for Guiding Development and was therefore approved. On March 15, 2006, the County adopted Ordinance No. 010-2006, which implemented Goal 105 of the Plan by providing criteria for the designation of the tier boundaries, excluding Ocean Reef, a vested subdivision; prioritizes land for public acquisition; and contains a mechanism for property owners to obtain due process by requesting an amendment based on specific criteria. By Final Order dated June 5, 2006, the Department determined that the Ordinance was consistent with the Principles for Guiding Development was therefore approved. On March 15, 2006, the County adopted Ordinance No. 011-2006, which implemented Goal 105 of the Plan by revising the NROGO in the unincorporated part of the County between Key West and Ocean Reef, and designating the boundaries of Tiers I, II, and III and Tier III Special Protection Areas (SPA). By a Final Order dated June 5, 2006, the Department determined that the Ordinance should be approved. Finally, on March 21, 2006, the County adopted Ordinance No. 013-2006, which implemented Goal 105 of the Plan by utilizing the tier overlay maps for all land in unincorporated Monroe County between Key West and Ocean Reef, and designating the tier boundaries of Tiers I, II, and III and Tier III SPAs. By a Final Order dated June 5, 2006, the Department approved the Ordinance. On July 7, 2006, Petitioners filed their initial Petition for Formal Administrative Proceedings challenging each of the Final Orders. On September 7, 2006, Petitioners filed an Amended Petition which made minor changes to their original Petition. The substantive allegations at issue here are found in paragraphs 26 through 31 and challenge each of the Ordinances in various respects as well as the designations given to a large number of parcels of land on ninety sheets of the Tier Overlay Maps. Just prior to hearing, Petitioners voluntarily dismissed paragraphs 26(b), 26(c), and 27(d) of the Amended Petition and therefore those allegations need not be addressed. The LDRs at issue delete the HEI system, adopt the Tier System, and simplify the ROGO and NROGO point systems. The HEI system called for lot-by-lot evaluations, which failed to take into account secondary impacts of development and resulted in loss of valuable habitat. The Tier system consists of maps which designate all areas outside of mainland Monroe County (except Ocean Reef, Big Pine Key and No Name Key) as either Tier I, SPA, or Tier III.5 The Tier designations now constitute the only habitat suitability determination, replacing all HEI and other habitat qualitative analysis. Under the new simplified ROGO point system the major points are based on the Tier designation. An application for development of a parcel in Tier I receives 10 points, in a SPA receives 20 points, and in Tier III receives 30 points. The simplified NROGO has a similar point spread. These points are intended to discourage development in environmentally sensitive areas and to direct and encourage development in appropriate infill areas, while recognizing that any development has an impact on the carrying capacity of the Florida Keys. § 9.5-122.4(a). Similar language regarding the NROGO point system is found in Section 9.5-124.7(a)(1). Tier I is assigned to parcels which are not suitable for development and are suitable for acquisition to protect native upland habitat. Tier III is assigned to parcels which are suitable for development. The SPA designation is assigned to parcels in Tier III which are part of areas of tropical hardwood hammock or pinelands of greater than one acre. Because of the point differential between Tier I, SPA, and Tier III, development will be guided towards areas suitable for development. The simplified ROGO system also awards points for lot aggregation (where the owner of multiple lots preserves all, except the lot to be developed), land dedication, affordable housing, flood hazard area, service by central wastewater system, payment to the land acquisition fund, and perseverance points. However, the major points are awarded based upon the Tier designation. The points awarded by the new LDRs are consistent with the point system already adopted in the Plan. See Policy 101.5.4., which requires the County to "implement the residential Permit Allocation and Point System through its [LDRs] based primarily on the Tier system of land classifications as set forth under Goal 105." Under both the old and the new ROGO/NROGO systems, it is possible that an applicant will never receive enough points to get an allocation since a low-scoring application always competes against all other applications for the limited number of allocations. The points for dedication of land encourage applicants to donate environmentally sensitive land to the County and assist the County to avoid inverse condemnation claims. The Tier system is easy to understand and easy to implement. The Tier system will not protect every piece of valuable habitat, but does preserve ninety-nine percent of the habitat value. The Tier system (with the changes recommended below) takes simple steps to make great gains in the preservation of habitat and thus implements the recommendations of the FKCCS. Petitioners' Challenge Prioritization Within Tiers As noted above, all parcels designated Tier I receive 10 points, and all parcels designated SPA receive 20 points. Paragraph 27f of the Amended Petition alleges that these Tier points "fail to prioritize the protection of protected species based upon their status or habitat based upon its quality within each Tier." Paragraph 27a of the Amended Petition also alleges that the Tier points "fail to assign negative points for endangered species and habitat quality to direct development in Tier I away from the most important natural areas." Petitioners are correct that the Tier system avoids the fine gradations that they describe. The County has deliberately avoided a complex point system in favor of protection for all important upland habitat. The Tier system avoids individual site assessments and designates the Tiers with a meaningful spread of points to target development to Tier III instead of environmentally sensitive land. The Tier point awards adopted in the challenged LDRs are consistent with the standards of the Plan. See Policy 101.5.4. Adjacent Projects Paragraph 27h of the Amended Petition alleges that Ordinance 009-2006, which includes the ROGO point allocations, allows the granting of 30 ROGO points to projects adjacent to native vegetation in Tier I or an SPA, as long as there is no clearing. This is arbitrary as it allows the type of indirect impact which the Carrying Capacity Study determined should no longer be allowed. Recommendation 3 of the FKCCS focuses on redevelopment and infill and recognizes that there may be some minor impacts that will be acceptable in these areas. Where existing development is already causing secondary impacts, the line between Tier I and Tier III could have been drawn further into the natural area, because the edge has already been impacted. The Tier system conservatively includes the undeveloped areas already suffering from secondary impacts in Tier I. Parcel Boundaries One of the new Tier designation criteria is found in Section 9.5-256(b) (in Ordinance No. 010-2006) and reads as follows: (b) Tier boundaries: Tier boundaries shall follow property lines whenever possible, except where a parcel line or distinct geographical feature, such as a canal or roadway, may be more appropriate. Paragraphs 28a and 28b of the Amended Petition allege that Section 9.5-256(b) is "arbitrary" and that given the underlying science concerning the need to protect all remaining natural areas, it is arbitrary and capricious for the LDR to fail to require the designation in the most protective Tier for lands that meet or potentially meet criteria for more than one Tier. The parcel-based information from the local Property Appraiser is commonly utilized as a base layer of the geographical information system (GIS) data. One goal of the Tier system is to render the permit allocation system transparent to the citizens. Assigning two Tier designations to the same parcel would create confusion, since the Tier system is designed to allocate development to parcels. For those parcels which include developed or scarified (lacking vegetation) areas and habitat suitable for Tier I designation, the County properly took into account the context of the parcel and whether the LDR development standards would allow further encroachment into the habitat. The Property Appraiser's data layer assigns a parcel number to all land that is known to be owned. Some areas of the County that appear to be land on aerial photographs are not owned by taxpayers and have not been assigned a parcel number. Since the adopted Tier Maps are based on the Property Appraiser's data layer, those areas that were not assigned parcel numbers by the Property Appraiser did not receive a Tier designation.6 If an error is discovered in the Property Appraiser's data layer and an owner of an undesignated piece of land seeks a development permit, the permit cannot be issued until the error is corrected. The LDRs apply to all land in the County, and no development can be undertaken without a development permit. § 9.5-2(a). As noted above, a development permit cannot be issued without a ROGO or NROGO allocation, or an exemption. §§ 9.5-120.1(a), 9.5-120.2, 9.5-124.1, and 9.5-124.2(a). Also, a ROGO or NROGO allocation cannot be awarded without an evaluation of the number of points assigned to an application, and points cannot be assigned without a Tier designation for the parcel. §§ 9.5-122.4 and 9.5-124.7. The following land areas challenged by Petitioners were appropriately not assigned a Tier designation because the land areas are not presently recognized as parcels on the Property Appraiser's data layer: 103 (outside parcel lines); 109 (outside parcel lines); 110; 116A and 116; 117A (outside rectangular parcel); 117; 118 and 119 (near U.S. Highway 1); 120 and 121; K146e; 154, 155, and 156; 507; K546; and 568. Tier I: Wetlands Paragraph 28e of the Amended Petition alleges that "the definition of Tier I [in Ordinance 010-2006] is arbitrarily vague in that it does not specify whether wetland native vegetated areas are to be included." Paragraph 28k of the Amended Petition alleges that the same LDR "provides inadequate protection for transitional wetlands and 'disturbed' salt marsh and buttonwood wetlands." The criteria for designation of Tier I are not vague. The criteria clearly do not include wetland native vegetated areas. The criteria "are used to evaluate upland habitats." § 9.5-256(c). The term "upland native habitat" is used throughout the criteria; the term "wetland" does not appear in the criteria. Although some wetland areas have been included in Tier I if part of a larger natural area, the focus of the Tier system is on uplands. The focus of the LDR Tier criteria on uplands is consistent with the Plan. Goal 205 states that "[t]he health and integrity of Monroe County's native upland vegetation shall be protected and, where possible, enhanced." Objective 205.1 requires the County to use various data sources "to identify and map areas of upland vegetation in the Florida Keys and to prepare Tier Overlay District Maps." Policy 205.1.1 requires the County to establish criteria for designation of Tier I. These Plan criteria refer to "upland native vegetation" and "upland native habitat" and do not refer to wetlands. The fact that the Tier I criteria are focused on uplands, and not on wetlands, does not mean that wetlands are unprotected. Section 9.5-338 of the new LDRs (in Ordinance No. 008-2006) provides that No development activity, except as provided in this division, are permitted in mangroves, freshwater wetlands and in disturbed saltmarsh and buttonwood wetlands; the open space requirement is one hundred (100) percent. The one hundred percent open space ratio for mangrove, freshwater wetlands, saltmarsh, and buttonwood wetlands is repeated in existing Section 9.5-347(b), which provides that "[n]o land shall be developed, used or occupied such that the amount of open space on the parcel proposed for development is less than the open space ratio listed below for each habitat." Only limited water-related development is allowed in undisturbed wetlands. §§ 9.5-347(c)(3) and 9.5-348(d). Disturbed wetlands are protected based on their evaluation under the Keys Wetlands Evaluation Procedure. § 9.5-348(d)(6). These wetland protections are adequate, and there is no need to require that all wetlands be designated as Tier I. Also, while some parcels designated as Tier I are surrounded in part by land that appears to be submerged, the absence of a Tier I designation on the surrounding land does not render the provision arbitrary since the new LDRs establish a process whereby a County biologist makes a site visit before the land gets scored for development. Finally, Petitioners' unsubstantiated fear that federal and state agencies may not adequately enforce their regulatory authority over future wetland development in the Keys, thus requiring a further strengthening of the County's proposed LDRs, is an insufficient basis upon which to invalidate the regulation. The following parcels challenged by Petitioners were correctly designated because the parcels are submerged lands or wetlands that are not part of a larger natural area: K105a; K112d and e; K113a; K125b; K134b; K137a and b; K145b; 148 and 148/151; K250a and b; K387a; K441b; K467b and c; K538a; K538/546a; K553; K575d; K579; K581; and K581/582a. Tier I: Natural Areas Above Four Acres One of the designation criteria for Tier I boundary criteria is found in Section 9.5-256(c)(1)a. (in Ordinance No. 010-2006) and reads as follows: Natural areas including old growth as depicted on the 1985 Existing Conditions Map and new growth of upland native vegetation areas identified by up-to-date aerials and site surveys above four (4) acres in area. Paragraph 28c of the Amended Petition alleges that this criterion "is arbitrary and capricious in that the relevant science does not support a categorical determination that natural areas below that size threshold require less protection than those at or above that threshold." The existing Plan (upon which the language in Section 9.5-256(c)(1)a. is obviously patterned) provides that one criterion for Tier I designation is "natural areas including old and new growth upland native vegetated areas, above 4 acres in area." Policy 205.1.1. In this respect, the new LDR is consistent with and implements Policy 205.1.1 and adds detail concerning sources of information. However, this policy merely establishes the "minimum" standard which the County must follow in establishing the Tier I boundary designation and does not bar a smaller size threshold, if appropriate. There are no scientific studies of record which support a particular number of acres when designating natural areas for levels of protection. Studies do show, however, that as patches of habitat become smaller, the ecological function of the patch deteriorates. Given these considerations, the County points out that in order to prioritize ecological and fiscal resources, a policy decision (with respect to the size of Tier I parcels) had to be made in order to create a system that could be administered. It also points out that the Florida Forever Program seeks to purchase "large" parcels of hardwood hammock in the Keys, presumably greater in size than four acres. (The Florida Forever Program is a land acquisition program administered by the Department of Environmental Protection.) Four-acre tracts of "natural areas" are not insignificant or common; they are "huge" by Keys standards. Simply because larger parcels have more value than smaller ones does not mean that smaller hammocks in the unique, small-island geography of the Keys are unimportant. Neither the FKCSS, nor the expert panel or peer reviews related to the study, support the use of four acres as a threshold for hammock importance. Indeed, the FKCSS and the best available science support the importance of preserving as much native hammock as possible. The scientific evidence also shows that areas less than four acres serve an important biological function for wildlife in the Keys. On the other hand, there is no relevant science that supports the claim that hardwood hammocks of less than four acres are not ecologically important or require less protection than do larger hammocks. Smaller hammocks are important for the unique plant communities they contain, regardless of their importance to wildlife. Finally, it is fair to infer from the evidence that the County's "policy" decision to use a four-acre threshold was not based on scientific considerations but, in the words of one County witness, was simply a number the County Commissioners "became comfortable with." (In fact, a January 19, 2004 memorandum by the County's outside consultant, which supports the four-acre threshold, was prepared after he knew that the County had decided to use that size threshold. See Respondents' Exhibit 5.) Because there is insufficient evidence to support the four-acre size limitation used in Section 9.5- 256(c)(1)a., that provision, as now written, should not be validated. Therefore, the following parcels were placed in an incorrect category because of the arbitrary four-acre size limitation and should be re-evaluated by the County after the Tier I regulation is revised: 91 (triangle) Ranger Station; K105c; K106a and b; K113c; K124/114; K125a; K126; K135a; K135b; K139a; K141; K142b and d; K142/144/145; K145c; K146b and c; K147b; K150; K151d; K151/152; K281a; K371a, b and c; K372a; K387b and c; K400a; 439a and b; K441a; K450/457; K468 (orange area); K482; K538b; K538/546; K548/549/540; K547; K553; K553/554; K554b; K575a; K575c; and K576. Tier I: Known Locations of Threatened and Endangered Species Another designation criterion for Tier I is found in Section 9.5-256(c)(1)e. (in Ordinance No. 010-2006) and provides as follows: Known locations of threatened and endangered species as defined in section 9.5-4, identified on the Threatened and Endangered Plant and Animal Maps or the Florida Keys Carrying Capacity Study, or identified in on-site surveys. Paragraph 28d of the Amended Petition alleges that limiting Tier I protections to known locations identified on the Threatened and Endangered Plant and Animal Map is contrary to the science as the referenced maps are not the best available science and limiting protection to "known locations" of such species arbitrarily fails to protect locations which have not yet been verified as "known" locations, but which may or are likely to be important to protected species. The Plan already provides that one criterion for Tier I designation is "known locations of threatened and endangered species." See Policy 205.1.1. This new LDR is consistent with and implements Policy 205.1.1 and adds detail concerning sources of information. In addition to consistency with the Plan, the known locations of threatened and endangered species criterion is a rational standard. Contrary to the allegations in the Amended Petition, the criterion is not limited to known locations as shown on the Threatened and Endangered Plant and Animal Maps. Known locations as identified in the FKCCS maps, and as identified in on-site surveys, also meet this criterion for inclusion in Tier I. The thrust of Petitioners' allegation is that the criterion ought to include suitable or potential habitat in Tier I, rather than known locations. "Known locations" means a location where the threatened or endangered species has actually been observed. "Potential habitat" or "suitable habitat" includes areas where the species has not been observed, but the habitat is similar to areas where the species has been seen. With the amendment of Tier I boundaries to an area of less than four acres, the vast majority of suitable habitat will be included in that Tier. See Finding of Fact 65, supra. Petitioners also contend that the Tier system should be based on the latest protected species maps, and that those used by the County are outdated and flawed. (Some of the data and imagery used by the County are several years old. This is presumably due in part to the fact that the process of formally adopting these LDRs began several years ago, and the County used data existing at that time.) There are now available United States Fish and Wildlife Service habitat maps reflecting 2006 conditions, which would obviously be more desirable to use. At some point in time, however, the process must come to an end; otherwise, the mapping studies would be constantly changing as new data became available, new site visits and re-evaluation of the parcels would be required each time the data were revised, and there would be no finality to the process. Tier I: Roads Paragraph 28e of the Amended Petition alleges that the Tier I designation criteria are arbitrarily vague because the criteria do not "specify . . . how roads will impact the determination of the relevant 'size area.'" The failure to address every conceivable factor does not render the Tier I designation criteria arbitrary or vague. The Tier I designation is intended to focus on larger areas, and the larger roads such as U.S. Highway 1 would have been considered a break between natural areas. However, this regulation should be distinguished from the determinations in Finding of Fact 95, infra, which relate to a lack of standards when constructing roads in the much smaller SPA areas. Tier I: Request for Designation Section 9.5-256(e) (in Ordinance No. 010-2006) provides that any individual may submit an application that an area meets the Tier I criteria, that a special master shall hold a public hearing on the application, and that the special master will render a written opinion to the planning commission and board of county commissioners either that the application meets the criteria for designating the lands as Tier I or that the documentation is insufficient to warrant a map amendment. Paragraph 28j of the Amended Petition alleges that Section 9.5-256(e) "grants the County Commission unfettered discretion to adopt or not adopt a special master recommendation to change a parcel's Tier designation." Subsection (e) of Section 9.5-256 was not changed by the new LDRs; therefore, the new LDR grants nothing that is not already in the LDRs. Moreover, subsection (e) provides a standard for the Commission's decision, that is, whether "the application meets the criteria for designating the lands as Tier I." Tier I: Six Annual Allocations Section 9.5-122(a)(6) of the new LDRs (in Ordinance No. 009-2006) provides as follows: Limit on number of Allocation Awards in Tier I: Except for Big Pine Key and No Name Key, the annual number of allocation awards in Tier I shall be limited to no more than three (3) in the Upper Keys and three (3) in the Lower Keys. Paragraph 27a of the Amended Petition alleges that Section 9.5-122(a)(6) is vague, arbitrary, and capricious because it does not specify how the six allocations will be determined. Section 9.5-122(a)(6) does not over-ride the rest of the Tier system. Each application must still garner enough points to out-compete the other applications. Section 9.5- 122(a)(6) provides a further layer of protection for Tier I parcels by specifying that, even if a larger number of Tier I parcels have enough points for a ROGO or NROGO allocation, no more than six may receive allocations in each year. Tier I: Off-Shore Islands Section 9.5-256(c)(1)f. of the new LDRs (in Ordinance No. 010-2006) provides that one criterion for designation as Tier I is "Conservation, Native Area, Sparsely Settled, and Off- Shore Island Land Use Districts." The adopted Tier Maps show some off-shore islands without a Tier designation. The County and Department have agreed with Petitioners that the Tier Maps should show the following off-shore islands as Tier I: K250c; 251; 252; 256; 390 (three islands); 4151 (two islands); K546a; 567; and K582. SPA: One Acre of Hardwood Hammock or Pinelands Section 9.5-256(c)(3) of the new LDRs (in Ordinance No. 010-2006) establishes that the fundamental criterion for designation as a SPA is as follows: Designated Tier III lands located outside of Big Pine Key and No Name Key with tropical hardwood hammock or pinelands of greater than one acre shall be designated as Special Protection Areas. Paragraph 28f of the Amended Petition alleges that the one-acre criterion for SPA is inconsistent with the best available science, which does not support a categorical conclusion that habitat patches of one acre or less is size require less protection than those placed in the SPA category. The existing Plan provides that at a minimum, "[d]esignated Tier III lands located outside of Big Pine Key and No Name Key with tropical hardwood hammock or pinelands of one acre of greater shall be designated as Special Protection Areas." Paragraph 4, Policy 205.1.1. In this respect, the new LDR is consistent with and implements that provision. As noted above, however, this does not bar the County from using a smaller acreage threshold, if appropriate. Like the four-acre threshold for Tier I parcels, a fair inference to be drawn from the evidence is that the establishment of a one-acre threshold for SPA parcels with tropical hardwood hammock or pinelands was a "policy" decision by the County Commissioners, was simply a number they felt "comfortable" with, was not based on the best available science, and is therefore arbitrary. Indeed, this "policy" decision was inconsistent with a staff recommendation made in 2004 that Tier III include "isolated upland habitat fragments of less than half an acre." See Petitioners' Exhibit 29, page 8; Respondents' Exhibit 9, page 8. The County acknowledges that current regulations that govern site visits for the HEI are based on valid science appropriate to the Keys. Under that system, the County considers only those hammock patches less than .37 of an acre to have no ecological value. Further, the County now awards positive points to patches of slightly more than one- third of an acre for having ecological value. Thus, it can be reasonably inferred that patches greater than one-third of an acre have ecological value and should be afforded more protection than now provided. Given the lack of scientific evidence to support the one-acre threshold, the validity of Section 9.5-256(c)(3), as now written, cannot be sustained. To support the one-acre threshold, the County points out that its staff performed site visits to the parcels in question to determine whether a potential SPA was really composed of hammock or pinelands and whether it was an acre or greater in size. However, this type of field work does not address the issue of whether the one-acre threshold is supported by the best available science. Accordingly, the following parcels were incorrectly placed in another category because of the arbitrary one-acre size limitation and should be re-evaluated after the SPA regulation is revised: K105b; K105/106; K106c and d; K112a, b, c and f; K113b, d and e; K114; K124/125; K125b, c and e; K133a, b, c, d, K133/134, K134a, c and d; K134a; K139b; K142a and c; K144/145 and 145a, d and e; K146a and d; K147a and c; K151a, b and c; K152a and b; K370-371; K371d; K372b; K385; K400b; K412b; K413a and b; K414b; K425; K441b; K450a, b and d; K467a, d and e; K549; K554a; K575/576; and K581/582. SPA: 40 percent Invasives Section 9.5-256(c)(3)a. of the new LDRs (in Ordinance No. 010-2006) provides conditions which "constitute a break in pinelands or tropical hardwood hammock for calculating the one- acre minimum patch size for designation" as a SPA. One of these conditions is "[a]ny disturbed pinelands or hardwood hammock with invasive coverage of forty (40) percent or more." § 9.5- 256(c)(3)a.2. Paragraph 28g of the Amended Petition alleges that Section 9.5-256(c)(3)a.2. "is contrary to the science, which calls for the removal of exotic vegetation to restore habitat and re-establish contiguity." Taking invasive infestation into account in determining whether a patch is large enough to qualify as a SPA is consistent with the FKCSS, which states Successful restoration of lands to create large patches of terrestrial habitats and to reestablish connectivity seems improbable. Restoration would require the conversion of large developed areas to native habitat, a goal that would face legal constraints, as well as high costs, uncertain probability of success, and a long timeframe for execution. Continuing and intensifying vacant land acquisition and restoration programs may provide more and faster returns in terms of consolidating protection of habitats in the Florida Keys. Since the resources to address these issues are not infinite, money is better spent acquiring larger patches in Tier I than in trying to restore the smaller patches with exotic vegetation. SPA: Central Sewer Section 9.5-256(c)(3)b.1. of the new LDRs (in Ordinance No. 010-2006) provides that the owners of lots designated as SPA may petition for a rezoning to Tier III if [t]he lot will be served by a central sewer and the wastewater collection system has an approved permit that was effective 3/21/06 to construct the system on file from the Department of Environmental Protection; Paragraph 28h of the Amended Petition alleges that Section 9.5-256(c)(3)b.1. is arbitrary because it "allows for the removal of parcels from the SPA Tier for [a reason] unrelated to their habitat value, such as service by central sewer " The March 21, 2006 date in Section 9.5-256(c)(3)b.1. means that this condition for removal from SPA applies only in the service area of the North Key Largo sewage treatment plant. The County and Department determined that development should be encouraged in the area served by the North Key Largo sewer plant, even though habitat that otherwise qualified for designation as SPA existed in that service area. The Principles for Guiding Development require the County and Department to improve nearshore water quality, and the best way to accomplish this goal is to construct central sewer systems to replace septic tanks. The Work Program adopted by the Administration Commission requires the County to fund and construct the North Key Largo central sewer system, which cannot be financed or operated without a customer base. Designating parcels as SPA in the North Key Largo service area would discourage development in that service area. In adopting and approving this regulation, the County and the Department appropriately balanced the competing goals of the Principles for Guiding Development. Given these unique circumstances, the LDR is not arbitrary. SPA: Sixteen Foot Road Section 9.5-256(c)(3)b.2. of the new LDRs (in Ordinance No. 010-2006) provides that owners of lots designated as SPA may petition for a rezoning to Tier III if [t]he lot is located within a one acre patch of hammock that is divided from the other lots that make up the one acre or more patch by a paved road that is at least 16 feet wide. Paragraph 28h of the Amended Petition alleges that this provision is arbitrary because it "allows for the removal of parcels from the SPA Tier for [a reason] unrelated to their habitat value, . . . [such as] the existence of a paved road at least 16' wide." The new regulation provides that if the owner of an undeveloped parcel designated as SPA constructs a sixteen-foot wide paved road through his property, he may then petition the County to rezone the property as Tier III simply because a paved road has been built. In providing this opportunity to rezone and develop a SPA parcel, however, the County failed to impose a corresponding requirement that the owner demonstrate that the functionality of the existing hammocks has been compromised by the road. By omitting this requirement, or imposing any other reasonable constraint, Section 9.5-256(c)(3)b.2. is arbitrary because it allows a property owner to circumvent a SPA designation by merely building a paved road. SPA: Survey Section 9.5-256(c)(3)c. of the new LDRs (in Ordinance No. 010-2006) provides that [a]ny hammock identified in the County's data base and aerial surveys as 1.00 to 1.09 acres in area shall be verified by survey prior to its designation as Tier III-A. A hammock that is deemed by survey and a field review by County Biologists to fail the minimum size criteria shall have the Special Protection Area designation removed from the subject parcel. Paragraph 28i of the Amended Petition alleges that Section 9.5-256(c)(3)c. is arbitrary because it requires a survey of any hammock less than 1.09 acres before designating it Tier III-A, while the balance of this LDR fails to require a survey of parcels below the size threshold set for Tier I before concluding that a parcel should not be placed in Tier I. The Tier designations were accomplished primarily by using GIS mapping data. When applied to the larger Tier I areas, a tenth of an acre is a small error. However, when applied to the much smaller SPA, a tenth of an acre error can be significant. The County's choice of surveying the smaller SPAs, while not treating the Tier I areas in the same manner, was not arbitrary. It is also reasonable to assume that in administering this regulation, the County will require a landowner to use a qualified surveyor to guarantee accuracy of the survey, and not allow the landowner to submit a survey that is self-serving and inaccurate. SPA: Development Standards Paragraph 28l of the Amended Petition alleges that "[t]he development standards for Tier III-A (SPA) are inadequate to protect the natural areas placed in that Tier." The development standards which apply specifically to parcels designated as SPA are Residential development is discouraged in SPAs, which receive 20 points towards a ROGO application, while Tier III parcels receive 30 points. § 9.5-122.4(a). Non-residential development is discouraged in SPAs, which receive 10 points towards an NROGO application, while Tier III parcels receive 20 points. § 9.5- 124.7(a)(1). No points are awarded for lot aggregation for a ROGO application which proposes clearing of any native upland vegetation in a SPA. § 9.5-122.4(c). No more than 40 percent of native upland vegetation, up to a maximum of 7,500 square feet, may be cleared in Tier III, including SPAs. § 9.5-347(b). For applications under consideration for sixteen consecutive quarters, the preferred County action is purchase for SPA, while an allocation award is available for Tier III that is not suitable for affordable housing. §§ 9.5-122.3(f) and 9.5-124.7(f). All generally applicable development standards also apply to SPAs, such as the environmental design criteria in Section 9.5-348; the density and intensity limitations in Sections 9.5-261, 9.5-262, 9.5-267, and 9.5-269; the shoreline setback requirement in Section 9.5-249; and the scenic corridor and bufferyard requirements in Sections 9.5-375 through 9.5-381. These development standards applicable in SPAs are adequate to protect these natural areas. Clearing on Aggregated Lots Section 9.5-347(e) of the new LDRs (in Ordinance No. 008-2006) establishes clearing percentages within the Tiers. For example, forty percent of native upland vegetation, up to a maximum of 7,500 square feet, may be cleared on a Tier III lot. Under Section 9.5-122.4(c) of the new Tier System, an applicant can receive four additional points by aggregating a contiguous vacant, legally platted lot within Tier III. Lot aggregation is "intended to encourage the voluntary reduction of density " Paragraph 26e of the Amended Petition (as orally modified at the hearing) alleges that new Section 9.5-347(e) "allows clearing on lots that receive points for aggregation, thus failing to protect the natural areas that aggregation is designed to protect." However, Section 9.5-122.4(c) provides that No points for aggregation shall be awarded for any application that proposes the clearing of any native upland habitat in a Tier III-A (Special Protection Area) area. No aggregation of lots will be permitted in Tier I. Therefore, applications which receive points for aggregation will not fail to protect natural areas because of clearing. Not-For-Profit NROGO Exemption in Tier III Section 9.5-124.3(a) provides that certain types of nonresidential development do not need an NROGO allocation. The exemptions include such uses as public/government uses, certain industrial uses, and agriculture uses. For example, Section 9.5-124.3(a)(4) of the new LDRs (in Ordinance No. 011-2006) makes the following changes to one such exemption: Development activity for certain not-for- profit organizations: Except for the non- public institutional uses on Big Pine Key and No Name Key pursuant to section 9.5- 124.2, non-residential development activity within Tier III designated areas by federally tax exempt not-for-profit educational, scientific, religious, social, cultural and recreational organizations, which predominately serve the county’s permanent population, if approved by the planning commission after review and recommendation by the planning director. This exemption is subject to the condition that a restrictive covenant be placed on the property prior to the issuance of a building permit. The restrictive covenant shall run in favor of Monroe County for a period of at least twenty (20) years. Any change in the use or ownership of the property subject to this restrictive covenant shall require prior approval of the planning commission, unless the total floor area exempted by the planning commission is obtained through an off-site transfer of floor area and/or non residential floor area allocation pursuant to this chapter. If the total amount of floor area that is transferred and/or allocated meets or exceeds the total amount of floor area exempted, the restrictive covenant shall be vacated by the County. This not-for-profit exemption is not applicable to non-residential development proposed within a Tier I designated area. those areas proposed for acquisition by government agencies for the purpose of resource protection. Non residential development approved under this section may not be changed to a for-profit use without permit approvals and a NROGO application for and receipt of a floor area allocation. (Underscored portions represent new language while the strike-through language represents deleted portions) Paragraph 29a of the Amended Petition alleges that new Section 9.5-124.3(a)(4) "arbitrarily allows a 'not-for- profit' NROGO exemption in the SPA that is not allowed in Tier I." The not-for-profit NROGO exemption is not created by the new LDRs; the new LDRs adopt new restrictions for the existing exemption. Moreover, there is nothing arbitrary about treating SPA differently than Tier I; the two designations are treated differently throughout the Tier system. The Tier I areas receive greater protection than the SPA areas as a matter of design. Existing Conditions Report The LDRs at issue in this case delete language in old Section 9.5-336, which references an "Existing Conditions Map," and create a new Section 9.5-336, which references an "Existing Conditions Report." (See Ordinance No. 008-2006). The new section requires that an application for land containing upland native vegetation communities must include a report that "identifies the distribution and quality of native habitat and any observed endangered/threatened or protected species within the parcel proposed for development." Paragraph 26a of the Amended Petition alleges that new Section 9.5-336 "provides inadequate protection for endangered/threatened or protected species that are not observed on the surveyed parcel, and does not require the use of the most current state and federal protected species lists." Paragraph 26d of the Amended Petition also alleges that new Section 9.5- 336 "fails to require the identification of potential habitat of protected species." Petitioners have mistaken the significance of the existing conditions report in the Tier System. Under the old HEI system, the habitat analysis required by old Section 9.5-337 was used to determine the quality of habitat on the surveyed parcel for the purpose of assigning points. Under the Tier System, each parcel has already been assigned to a Tier. The existing conditions report is used for the purpose of locating development on the parcel that avoids the most valuable habitat. There is nothing in new Section 9.5-336 that suggests that the most current state and federal lists will not be used in the preparation of the existing conditions report. Affordable Housing At least twenty percent of the ROGO allocations can only be used for affordable housing. See old § 9.5-122(b)(1)a.; new § 9.5-122(a)(3)a.; Policy 101.2.4. Approximately 7,000 families in Monroe County are "cost burdened," in that they pay more than thirty percent of their income for housing, which is part of the affordable housing crisis in the County. Section 9.5-266 of the old LDRs provides standards for affordable housing and grants an increase of density in some land use districts if the density is used for affordable housing. The new LDRs (in Ordinance No. 009-2006) make the following minor changes to Section 9.5-266(a)(8): (8) If an affordable or employee housing project or an eligible commercial apartment(s) designated for employee housing contain(s) at least five (5) dwelling units, a maximum of twenty (20) percent of these units may be developed as market rate housing dwelling units. The owner of a parcel of land must develop the market rate housing dwelling units as an integral part of an affordable or employee housing project. In order for the market rate housing dwelling units to be eligible for incentives outlined in this section, the owner must ensure that The use of the market rate housing dwelling unit is restricted for a period of at least fifty (50) thirty (30) years to households that derive at least seventy (70) percent of their household income from gainful employment in Monroe County; and Tourist housing use and vacation rental use of the market rate housing dwelling unit is prohibited. Paragraph 27g of the Amended Petition alleges that Section 9.5-266(a)(8) "allows housing units permitted as 'affordable or employee housing' to be used for market rate housing." The amendments to Section 9.5-266(a)(8) make only a minor adjustment in the existing incentive to include affordable or employee housing in market rate projects. Moreover, neither the old nor the new Section 9.5-266(a)(8) allows affordable housing ROGO allocations to be used for market rate housing. This section allows a developer to use market rate ROGO allocations together with affordable housing ROGO allocations to take advantage of the increased density available to affordable housing projects, while also providing an economic incentive to construct affordable housing. The new LDRs also address affordable housing by increasing the density for affordable housing in the Suburban Commercial district from fifteen dwelling units per acre to eighteen, see Section 9.5-266(a)(1)b., and increasing the length of time that an affordable housing unit must remain affordable from thirty years to privately financed projects and fifty years for publicly financed projects to ninety-nine years for all affordable housing projects. § 9.5-266(f)(1). Market Rate Housing Awards from Future Allocation Periods Section 9.5-122.1 (in Ordinance No. 009-2006) provides the application procedure for residential ROGO allocations. Subsection (h) in the old LDRs, which has been renumbered and amended as subsection (g) in the new LDRs, authorizes borrowing from future ROGO allocations in limited circumstances. Paragraph 27b of the Amended Petition alleges that new Section 9.5-122.1(g)(1), which allows the Planning Commission to award additional dwelling units from future annual allocations to complete projects, "is arbitrary and capricious as it provides no standards or limits on whether or to what extent, such additional allocations can be awarded." Among other things, Ordinance No. 009-2006 makes the following changes to Section 9.5-122.1, which pertains to the authority of the Planning Commission to award units from future allocations: ((h) (g) Borrowing from future housing allocations: ((1) Subject to approval by the board, t The planning commission may award additional units from future quarterly annual dwelling unit allocations periods to fully grant an application for multi-family residential units, if such an application receives an allocation award for some, but not all, of the units requested because the applicant seeks more units than are available during the allocation period. * * * * (3) The planning commission shall not reduce any future market rate quarterly allocation by more than twenty (20) percent, but may apply the reduction over any number of future quarterly allocation periods and shall not apply these reductions to more than the next five (5) annual allocations or twenty (20) quarterly allocations. The amendments to the LDRs do not create the authority of the Planning Commission to award future allocations to complete projects; such authority already existed. The amendments to Section 9.5-122.1 limit the extent of the additional allocations. In addition, the Plan contemplates that residential allocations can be borrowed from future quarters. See Policy 101.2.3, which provides procedures for the annual adjustment of the number of permits. Affordable Housing Awards from Future Allocation Periods The old LDRs provided the following guidance to the Planning Commission for awarding future allocations: "Multi- family affordable housing or elderly housing projects shall be given priority." Section 9.5-122.1(g)(4) of the new LDRs (in Ordinance No. 009-2006) provides that [t]he board of county commissioners, upon recommendation of the planning commission, may make available for award up to one- hundred (100) percent of the affordable housing allocations available over the next five annual allocations or twenty (20) quarterly allocations. Paragraph 27c of the Amended Petition alleges that new Section 9.5-122.1(g)(4) is arbitrary and capricious and inconsistent with the comprehensive plan, which does not allow for allocations beyond the annual caps. In addition, this allowance may result in unacceptable evacuation and environmental impacts. As stated above, the Plan contemplates that residential allocations can be borrowed from future quarters. See Policy 101.2.3, which provides that one of the factors to be considered in the annual adjustment of the number of permits is the "number of allocations borrowed from future quarters." The borrowing forward for affordable housing projects will assist the County in addressing the affordable housing crisis. As noted above, approximately 7,000 families in the County are "cost-burdened" by paying more than thirty percent of their income for housing. See Finding of Fact 111, supra. The annual permit caps are the result of a determination that there is a finite amount of development that can be allowed in the Keys without exceeding a 24-hour evacuation time (in the event of hurricanes). While County witness Conaway believes that the regulation is subject to the 24-hour evacuation cap, she acknowledged that it does not specifically say that. Even so, in making its annual evaluation, the County (and its planning staff) will know what the clearance time is from a particular area of the Keys and the amount of future allocations that can be issued without exceeding the 24-hour evacuation cap. Therefore, it is reasonable to assume that the new LDR will not result in unacceptable evacuation impacts. Administrative Relief Both the old and the new LDRs provide administrative relief for residential applications which have been unsuccessful in seeking a ROGO application. See old § 9.5-122.2(f) and new § 9.5-122.3. The administrative relief available under both the old and the new sections is a grant of a ROGO allocation, an offer to purchase the parcel at fair market value, or such other relief as appropriate. The old section provides administrative relief if the application has been considered for at least three consecutive annual allocation periods, and the new section if the application has been considered for sixteen consecutive quarterly allocation periods. The old and new NROGO sections have a similar provision. See old § 9.5-124.7 and new § 9.5- 124.7(f). Paragraphs 27e and 29b of the Amended Petition allege that new Sections 9.5-122.3(f) and 9.5-124.7(f) fail "to establish any required facts or findings as a condition precedent before the County can provide a form of administrative relief other than an offer to purchase." However, the new sections provide more guidance than the old LDRs because they specify that an offer to purchase at fair market value shall be the preferred action for Tier I parcels, SPA parcels, and Tier III parcels suitable for affordable housing. Also, the new LDR sections are consistent with Plan provisions regarding administrative relief. See Policies 101.6.1, 101.6.5, and 105.2.12. Protection of Listed Species Paragraph 28m of the Amended Petition alleges that Ordinance 010-2006, which adopts changes to Section 9.5-256, "provides inadequate protections for threatened or endangered species or species of special concern." Besides the thresholds used for Tier I and SPA habitat patches (which presumably will be changed to smaller areas in the future), the system uses other elements to place lands in Tier I or SPA and adequately protects the majority of undeveloped upland habitat in the Keys. The Tier system is robust, easy to administer, and implements the guidelines of the FKCCS. Protection of Habitat Paragraph 31 of the Amended Petition, as an ultimate fact, alleges that "[t]he land development regulations approved by the Final Orders are inadequate to protect the tropical hardwood hammock, pine rockland, and transitional wetland communities in the Keys." The Tier system is not intended to protect wetland communities; that is accomplished by other provisions in the LDRs. (The tier designation is primarily designed to protect upland native habitat.) The new LDRs strongly discourage development in tropical hardwood hammock and pine rockland communities. The 20-point spread between Tier I and Tier III and the 10-point spread between SPA and Tier III make it very difficult to develop in SPA and especially in Tier I. Mapping Errors As might be expected, any county-wide mapping exercise of this magnitude will inevitably include some errors. The County and Department agree with Petitioners that the following parcels were incorrectly designated: 71 (Tier III rectangle) should be Tier I; 91 (2 small lots) should be Tier I; 101 (2 small lots) should be Tier I; 102&103 (Tier 0 parcel) should be Tier I; 109 (lower right corner) should be Tier I; 117A (rectangle) should be Tier I; K124a should be SPA; K125d should be Tier I; K140/141 should be Tier I; K251/252 should be Tier I; K281b should be Tier I; K400b should be SPA; K401b should be Tier I; K412a should be Tier I; K413b and c should be Tier I; K414a should be Tier I; K450c and e should be Tier I; 526 (peninsula north of US 1) should be Tier I; K554c and d should be Tier I; K566/567 should be Tier I; K575b (except for 1 developed lot) should be Tier I; and K581 (portion drawn by Trivette) should be Tier I. aa. Big Pine Key Tier Maps 334, 344, and 345 are included in the Amended Petition and in Petitioners' Exhibits 67 and 68, both entitled "Parcels Where Tier Designation Changes Recommended." However, Petitioners offered no testimony concerning these maps. Tier Maps 334, 344, and 345 are located on Big Pine Key. The Tier Overlay Maps for Big Pine Key and No Name Key were adopted by a separate Ordinance which is not at issue in this case. bb. Consistency with the Principles for Guiding Development The Principles for Guiding Development for the Florida Keys Area of Critical State Concern are found in Section 380.0552(7), Florida Statutes, and are the benchmark by which to measure the validity of the LDRs. They read as follows: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Except for those portions of new Sections 9.5- 256(c)(4)a., 9.5-256(c)(3), and 9.5-256(c)(3)b.2, which relate to the threshold sizes for Tier I and SPA natural areas, and the rezoning of SPA parcels based upon the construction of a road, and the parcels identified in Findings of Fact 65, 80, 86, and 132, which were incorrectly designated, the new LDRs are consistent with, and implement, the Plan. Also, with the same exceptions, the new LDRs strengthen the County's capability for managing land use and development by providing a transparent, easily implemented ROGO system that can be understood by the citizens of the County. The new Tier system avoids reliance on the varied HEI interpretations of individual biologists and simplifies implementation for County planning staff. The new LDRs are not intended to protect shoreline and marine resources, which are protected by other provisions in the LDRs. However, as development is curtailed in the upland areas, the downstream effects of runoff will be limited. The new LDRs are not intended to protect freshwater wetlands or dune ridges and beaches; these are protected elsewhere in the LDRs. Except for those provisions and parcels described in Finding of Fact 135, the new LDRs protect upland resources, tropical biological communities, and native tropical vegetation by awarding fewer points to these sensitive upland areas and directing development to scarified and infill areas. The new LDRs do not address sound economic development. The new LDRs are not intended to address quality of water, although they do promote good water quality to some extent by preserving natural habitat and open space, and thus reducing runoff. With the same exceptions identified in Finding of Fact 135, by protecting the vast majority of the upland habitat and directing development to scarified and infill areas, the new LDRs will help maintain the scenic value and the historic character of the Keys. With the same exceptions, the new LDRs also protect the small patches of hammock that contribute to the community character of the Keys. The new LDRs do not protect the historical heritage of the Florida Keys, but also do nothing to harm the historical heritage. The new LDRs encourage the public purchase of lands within the wildlife refuges and thus protect the value and efficiency of those refuges. The new LDRs also encourage the cost-effective installation of central sewer collection and disposal facilities by directing development to subdivisions which are fifty percent built-out. By directing growth to Tier III areas, the Tier system allows the County to avoid the construction of public infrastructure to serve Tier I areas. The new LDRs increase the density for affordable housing in the suburban commercial areas and double the length of time that an affordable unit must remain affordable. The new LDRs also take steps to make adequate affordable housing available in the Keys by providing that a developer may receive a density bonus by building some market rate housing as part of an affordable project. The new LDRs maintain the limitation on the annual number of development allocations and allow the County to maintain its ability to evacuate during a hurricane. With the exception of those regulations and parcels identified in Finding of Fact 135, the new LDRs designate the majority of the Keys as Tier I, which is intended for public purchase. The only way to maintain the hurricane evacuation time is to purchase developable property and retire the development rights. Except as to those LDRs and parcels identified in Finding of Fact 135, the remaining LDRs are consistent with the Principles for Guiding Development as a whole.
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 approving Ordinance No. 008-2006, except for the deletion of Section 9.5-342; Ordinance No. 009-2006; Ordinance No. 010-2006, except for Sections 9.5-256(c)(4)a., 9.5- 256(c)(3), and 9.5-256(c)(3)b.2.; Ordinance No. 011-2006; and Ordinance No. 013-2006, except for the parcels identified in Findings of Fact 65, 80, 86, and 132. DONE AND ENTERED this 26th day of June, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2007.
Conclusions An Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings has entered an Order Closing File which relinquishes jurisdiction to the Department of Community Affairs (“Department”) of all of the issues raised in the Petition. A copy of the Order is attached to this Final Order as Exhibit A.
