The Issue The issue in this case is whether an amendment to the future land use map of the Martin County comprehensive plan, Amendment No. 98-3, is "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes (2000).
Findings Of Fact The Parties. Hobe Sound Citizens Alliance, Inc. (hereinafter referred to as the "Alliance"), is a not-for-profit corporation organized under the laws of Florida. The Alliance was organized in July 1998 primarily to respond to proposed land use designation changes for the property that is the subject of this proceeding and for other property. The Alliance has three officers (a President, Secretary, and Treasurer) and an eight-member Board of Directors. The officers and directors of the Alliance all reside in Martin County, Florida. The members of the Board of Directors are from different neighborhoods in Martin County. The Alliance maintains a mailing list of approximately 500 individuals who are considered "members" of the Alliance. These individuals have all expressed interest in the activities of the Alliance, but have not taken any formal steps to join the Alliance, such as paying dues or completing an application for membership. In fact, the Alliance does not collect dues or have a membership application. Petitioner, Mary A. Merrill, is an individual who resides in an area of unincorporated Martin County, Florida, known as "Hobe Sound." Ms. Merrill serves as President of the Alliance. During the process of adopting the amendment which is the subject of this matter, Ms. Merrill and the Alliance made comments and objections. Respondent, Martin County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is located on the east coast of Florida. The County is bordered on the east by the Atlantic Ocean, on the south by Palm Beach County, on the north by St. Lucie County, and on the west by Lake Okeechobee and a portion of Okeechobee County. Intervenor, Hobe Sound Land Company, Ltd. (hereinafter referred to as the "Land Partnership"), is a limited partnership organized under the laws of Florida. The Land Partnership's general partner is Hobe Sound Land Company, Inc. (hereinafter referred to as the "Land Company") and the limited partners are a number of trusts organized for the benefit of various members of the Reed family. The Land Partnership is the owner of the property which is the subject of this proceeding (hereinafter referred to as the "Subject Property"). The County's Comprehensive Plan. General The County has adopted a comprehensive land use plan as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). The Martin County Florida Comprehensive Growth Management Plan 1999/00 (hereinafter referred to as the "Plan"), has been determined to be "in compliance" as those terms are defined in the Act. The Future Land Use Element The Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE"), consisting of the following: Section 4-1, "Background Information"; Section 4-2, "Analysis of Land Use Features"; Section 4-3, the "Future Land Use Map and Map Series"; Section 4-4, "Goals, Objectives and Policies"; Section 4-5, "Performance Standards"; and Section 4- 6, "Implementation Strategies." Sections 4-1 and 4-2 consist of what the County refers to as "narrative" sections which the County gives less weight to in determining whether an amendment to the Plan is "in compliance" than it gives Section 4-4, which contains the Goals, Objectives, and Policies of the Plan. These narrative sections of the Plan, however, are not "data and analysis." They were adopted as a part of the Plan. See the second unnumbered page of the Plan. The FLUE establishes 13 separate and distinct land-use categories. These land-use categories determine the uses to which property subject to the Plan may be put. The Plan's Future Land Use Map and Map Series (hereinafter referred to as the "FLUM"), depicts all property subject to the Plan and depicts the land use category assigned to all property in the County. Among the land use categories established in the FLUE pertinent to this proceeding is the "Institutional" land use category. To distinguish this category from the "Institutional- County" land use designation of the FLUE, the category is referred to as the "General Institutional" category. Property designated as General Institutional is subject to the following sub-categories or intensities of use: "retirement home, churches, schools, orphanages, sanitariums, convalescent, rest homes, cultural organizations, military, colleges, hospitals, federal, municipal, utilities, and rights- of-way." Section 4-4.M.1.h.(3). of the FLUE, provides the following Policy governing the use of General Institutional property: General Institutional - The General Institutional category accommodates public and not-for-profit facilities such as, but not limited to schools, government buildings, civic centers, prisons, major stormwater facilities, fire and emergency operation center facilities, public cemeteries, hospitals, publicly owned public water and sewer systems, dredge spoil management sites, and airports. Investor owned regional public water and sewer systems and private cemeteries may be allowed in General Institutional. . . . While Institutional use is reserved for the above uses, this shall not prohibit for- profit medical offices and other ancillary facilities owned by a non-profit hospital as long as they are part of a Planned Unit Development. . . . . . . . The Plan also establishes land use categories in the FLUE for the residential use of property. All land which is designated for residential development on the FLUM is subject to Section 4-4.M.1.e. of the FLUE: The Land Use Map allocates residential density based on population trends; housing needs; past trends in the character, magnitude, and distribution of residential land consumption patterns; and, pursuant to goals, objectives, and policies of the Comprehensive Growth Management Plan, including the need to provide and maintain quality residential environments, preserve unique land and water resource and plan for fiscal conservancy. There are seven types of designated residential land use categories created by the Plan. Those uses include the following: 10 units per acre for "high density;" 8 units per acre for "medium density;" 5 units per acre for "low density residential;" 2 units per acre and 1 unit per acre for "estate density;" .5 units per acre for rural areas. There is also a "mobile home density" category. The lowest density of .5 units per acre is reserved for those areas that are designated as rural. The estate density categories are used for areas are located "generally on the fringe of the urban service districts and generally are not accessible to a full complement of urban services." Sections 4-4.M.1.e.(1) and (2) of the Plan. Of primary pertinence to this proceeding is the residential land use designation of "Low Density Residential." Residential land designated "Low Density Residential" is limited by Section 4-4.M.1.e.(3). of the FLUE as follows: Low Density Residential Development. The low density residential designation is reserved for land accessible to existing urban service centers or located in the immediate expansion area. Densities permitted in this area shall not exceed five (5) units per gross acre. Review of specific densities shall be directed toward preserving the stability and integrity of established residential development and toward provided equitable treatment to lands sharing similar characteristics. Design techniques such as landscaping, screening and buffering shall be employed to assure smooth transition in residential structure types and densities. Generally, where single family structures comprise the dominant structure type within these areas, new development on undeveloped abutting lands shall be required to include compatible structure types on the lands immediately adjacent to existing single family development. Excessive Residential Property and the Active Residential Development Preference Planning System. Section 4-2.A.6.c. of the Plan recognizes that the County has designated an excessive amount of land for residential use. This section of the Plan indicates that, at the time the Plan was adopted, there was a projected need for 26,231 acres of land to accommodate the projected population of the County to the Year 2005. It also indicates that, as of the date of the Plan, 35,834 acres of vacant land had been designated for residential use, well in excess of the amount of land necessary to meet demand. Despite the requirements of the Act and Chapter 9J-5, Florida Administrative Code, requiring appropriate planning for residential needs within a local government's jurisdiction, the Plan was approved by the Department as being "in compliance" with the designation of an excessive amount of land for residential use in the County. Instead of requiring strict compliance with the provisions of the Act and Chapter 9J-5, Florida Administrative Code, dealing with planning for future residential land use needs, the County and the Department entered into a Stipulated Settlement Agreement specifying that the Plan include a requirement that the County undertake the collection of more current land use data and refine the various land use predictive factors it had been using. The Stipulated Settlement Agreement also required that the County institute an Active Residential Development Preference Planning System (hereinafter referred to as the "ARDP System"), to monitor the timing and location of residential development in the County. Section 4-2.A.8. of the Plan provides a Policy dealing with future residential land use requirements for the County. The Policy reports the over-allocation of vacant land designated for residential uses in the County and the need for the ARDP System. The Policy specifically provides, in part: While the current pattern on the Future Land Use Map will remain as is, an active residential development "125% test" will be used in conjunction with location and land suitability requirements in the review and approval of future land use and/or project requests. These requirements shall include, at a minimum, location within the Primary, or Secondary Urban Service District; consistency with the Capital Improvement Element; protection of natural resources; and adequate provision of facilities and services at the adopted level of service. The Policy goes on to provide that residential development in the County will be maintained at 125 percent capacity through the ARDP System and describes other measures to reduce the amount of excessive residential property to be developed in the County. Section 4-4.A.6. of the Plan establishes a Policy requiring that the County implement the ARDP System by May 1991. Consistent with Section 4-4.A.6. of the Plan, the County has adopted the ADRPP System. Environmental Protection Considerations in the FLUE Section 4-2.A.6.d. of the Plan recognizes that residential use of land located near or on the coast can threaten the "preservation of the very attributes of the area which make it attractive for growth." Therefore, the Policy provides that any such development is to be planned to minimize the threat by "assuring that the environmentally sensitive and threatened habitats are preserved." The Policy also provides: Certain areas in Martin County are recognized and beginning to be identified by federal, state and local programs as environmentally sensitive. These areas provide special value in producing public benefits, including: recreational opportunities, life support services, tourism, commercial and sport fishing, scenic values, water purification, water recharge and storage, and sensitive habitats critical to the survival of endangered wildlife and plants. Urban development in or adjacent to environmentally sensitive areas can significantly reduce their environmental values. Additionally, there are important public health concerns associated with development in these areas, particularly in relation to potable water and waste disposal in low lying areas. . . . Section 4-2.A.6.f. of the Plan recognizes the importance of natural vegetation. The Policy also recognizes that urban development removes or alters the County's natural vegetation. Coastal Management Element Section 8.4 of the Plan establishes the Goals, Objectives, and Policies for the Coastal Management Element of the Plan. The area subject to this Element is described on maps adopted as part of the Element, including the map depicted in Figure 8-1. The Subject Property is not located within the coastal management area established by the Element. Section 8.4.A.2.a. of the Plan provides "land use decisions guidelines" requiring a consideration of the impacts of development on fish, wildlife, and habitat, including cumulative impacts. These guidelines, however, apply to development within the coastal management area established by the Plan. Conservation and Open Space Element Chapter 9 of the Plan establishes the Conservation and Open Space Element. The Goals, Objectives, and Policies of the Element are set out in Section 9-4 of the Plan. Section 9-4.A. of the Plan establishes the following Goal: The goal of Martin County is to effectively manage, conserve and preserve the natural resources of Martin County giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries and wildlife with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon. Section 9-4.A.2.a. of the Plan requires that the County continue to enforce and improve its Wellfield Protection Ordinance. The Wellfield Protection Ordinance is intended to regulate land use activities within the zones of influence of major wellheads. Section 9-4.A.2.b. of the Plan provides the following: New potable water wells and wellfields shall be located in areas where maximum quantities of regulated materials (e.g. hazardous and toxic materials) do not exceed the proposed criteria of the Wellfield Protection Ordinance. At the time future wellfield locations are identified, establishment of incompatible land uses within the zones of influence of such wells shall be prohibited. Objective 9-4.A.9. of the Plan provides for the protection and enhancement of wildlife and habitat. Policy 9- 4.A.9.a. of the Plan provides the following: Land use decisions shall consider the effects of development impacts on fish, wildlife and habitat and the cumulative impact of development or redevelopment upon wildlife habitat. In cases where rare, endangered, threatened or species of special concern are known to be present, a condition of approval will be that a preserve area management plan be prepared at the time of site plan submittal. . . . To ensure adequate protection, protected plants and animals, which cannot be provided with sufficient undisturbed habitat to maintain the existing population in a healthy, viable state on site, shall be effectively relocated in accordance with local, state and federal regulations. Potable Water Service Element Chapter 11 of the Plan establishes a Potable Water Service Element. The Goals, Objectives, and Policies of this Element are contained in Section 11-4. Section 11-4.A.5 of the Plan provides that, by 1991, the County was to establish programs to conserve and protect potable water resources within the County. The specific components of the programs are provided. None of those provisions are relevant to this matter. Drainage and Natural Groundwater Aquifer Recharge Element Chapter 13 of the Plan establishes a Drainage and Natural Groundwater Aquifer Recharge Element. The Goals, Objectives, and Policies of this Element are contained in Section 13-4. Section 13-4.A.1. of the Plan establishes the following Objective: Martin County will maintain existing ground water and surface water quality, improve areas of degraded ground water and surface water quality and prevent future contamination of ground water supply sources. Section 13-4.A.2. of the Plan establishes the following Objective: "Enhance the quantity of ground water recharge and maintain desirable ground water levels." The Objectives, and the Policies established to carry them out, recognize the significance of ground waterrecharge and groundwater levels in the County. Preservation of groundwater recharge and groundwater levels is a significant goal of the County. None of the Policies established to carry out the foregoing Objectives specifically eliminate the use of vacant land located near wells for residential purposes. Plan Amendment Adoption Procedures Procedures for the adoption of amendments to the Plan are established in Section 1.11, "Amendment Procedures," of the Plan. Section 1.11.C.2. of the Plan provides the following procedures for evaluating changes to the FLUM: In evaluating each land use map amendment request, staff begins with the assumption that the 1982 Land Use Map, as amended, is generally an accurate representation of the Board of County Commissioners and thus the community's intent for the future of Martin County. Based on this assumption, staff can recommend approval of a requested change providing consistency is maintained with all other Elements of this Plan if one of the following four items is found to be applicable. That past changes in land use designations in the general area make the proposed use logical and consistent with these uses and there is adequate availability of public services; or That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. That the proposed change would meet a necessary public service need which enhances the health, safety or general welfare of County residents. In the event that staff can not make a positive finding regarding any of the above items, then staff would recommend denial. (Emphasis added). The Plan requires that the Director of the County's Growth Management Department, after review of a proposed amendment, submit recommendations to the Local Planning Agency for consideration. The Local Planning Agency is required to certify its findings and recommendations to the Board of County Commissioners of Martin County (hereinafter referred to as the "Board"). Miscellaneous Provisions of the Plan. Section 4-2.A.6.e. of the Plan deals with agricultural use and vacant land. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.A.1.a. of the Plan establishes a Policy that requires that the County revise its Land Development Regulations in existence at the time the Plan was adopted. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.E.1. of the Plan requires that the County revise its Land Development Code by July 1990. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. The County's Sustainable Communities Designation Agreement. The County and the Department of Community Affairs (hereinafter referred to as the "Department"), entered into a Sustainable Communities Designation Agreement (hereinafter referred to as the "Designation Agreement"). The Designation Agreement was entered into pursuant to Section 163.3244 of the Act. Pursuant to the Designation Agreement, the Department designated the County as a "sustainable community." Among other things, the designation of the County as a sustainable community eliminates the need for the County to have the Department review and comment on amendments to the Plan that affect areas within the urban growth boundary or "Primary Urban Services District" created by the Plan. The Subject Property. The Subject Property is a parcel of real property located in the Hobe Sound area of unincorporated Martin County. The Subject Property consists of approximately 24.5 acres of land. The land use designation for the Subject Property on the FLUM is General Institutional. The Subject Property is undeveloped, vacant land. It is comprised of sandy soils, native upland scrub habitat with native Sand Pine groundcover. The Subject Property was described in an Executive Summary of the proposed plan amendment considered by the County as follows: The parcel is located in an area considered to be one of the last contiguous large areas of native upland scrub habitat in Florida. Groundcover is almost entirely native Sand Pine with some primitive trails and small areas of disturbed land. Endangered species found on the parcel include the Florida Scrub Jay and Gopher Tortoise. Sand Pine is considered to be endangered, unique or rare and the Comprehensive Plan policy 9- 4.A.7.f(2) states that "Where possible, increased conservation (twenty-five (25) percent of the total upland area) of native upland habitats which are determined to be endangered, unique or rare in Martin County, or regionally rare will be required by Martin County." The Subject Property is bounded on the north by Saturn Avenue, a two-lane residential street; on the south and west by undeveloped land; and on the east by U.S. Highway One, a multi- lane divided highway. The property to the north is designated Low Density Residential; the property to the east is designated for commercial uses; and the property to the south and west is designated General Institutional. While located relatively close to the Intercoastal Waterway, the Subject Property is not located on the "coast." The Subject Property was previously owned by the Hobe Sound Water Company, a privately owned water utility. At the request of Hobe Sound Water Company, the Subject Property was designated as General Institutional. No wells currently are located on the Subject Property. The Subject Property was acquired from the Hobe Sound Water Company by the Land Partnership. The undeveloped land located to the south of the Subject Property is owned by South Martin Regional Utilities (hereinafter referred to as "SMRU") and is utilized for a water plant and wells. SMRU acquired this land and the remainder of the land used by the Hobe Sound Water Company from the water company. There are five wells located on the property to the south of the Subject Property. The property to the west of the Subject Property is also owned by SMRU but is not being utilized for wells. The property acquired by SMRU was, and remains, designated as General Institutional. The Subject Property serves as a significant ground water recharge area because of the porous nature of the soils of the Subject Property. The Subject Property is located within the Primary Urban Services District of the Plan. The Subject Amendment and Its Review. The amendment at issue in this proceeding was initiated by the Land Partnership after it acquired the Subject Property from the Hobe Sound Water Company. At the time of the acquisition of the Subject Property, the Land Partnership knew or should have known that it was designated for General Institutional use. The Land Partnership requested a change in the land use designation for the Subject Property on the FLUM from General Institutional to Low Density Residential or "the most appropriate land use designation." The proposed amendment was reviewed by the staff of the County's Growth Management Department. Among other things, the staff considered whether any of the four items specified in Section 1-11.C.2 of the Plan applies to the amendment. The staff determined that the first and fourth items listed in finding of fact 41 did not apply, that the second item was somewhat applicable, and that the third item applied to the amendment. The proposed amendment was also reviewed by the Treasure Coast Regional Planning Council (hereinafter referred to as the "TCRPC"). Comments concerning the proposed amendment were prepared by the TCRPC, but were withheld because review by the TCRPC is not required due to the sustainable communities designation for the County. The draft comments of the TCRPC, however, raised objections to the proposed amendment due to concerns over the potential endangerment to the wellfields in the area and the potential destruction of critical habitat and vegetation. No copy of the TCRPC's regional plan was offered in evidence in this case. Nor did anyone associated with TCRPC testify about the draft comments. The Department also informally reviewed the proposed amendment. Rather than prepare an Objections, Comments, and Review report on the proposed amendment, the Department prepared informal comments, which it provided to the County. Those comments were responded to by the County. Hearings to consider the proposed amendment were conducted by the Local Planning Agency. On January 21, 1999, the Local Planning Agency voted to recommend that the proposed amendment not be adopted. The proposed amendment was designated Amendment No. 98-3 (hereinafter referred to as the "Amendment"). The Amendment was adopted by the Board on September 28, 1999, as a part of Ordinance No. 553. The evidence failed to prove that any relevant procedure for adopting the Amendment was violated by the County. The Amendment changed the land use designation for the Subject Property from General Institutional to Low Density Residential on the FLUM. This designation would allow the development of the Subject Property for a maximum of 122 residential units. Data and analysis supporting a potential increase of 122 units of additional residential property did not exist when County adopted the Amendment. Nor does such data and analysis exist now. ARDP System Data. Since the implementation of the ARDP System the County has been collecting and analyzing data concerning residential development in the County. No timely annual update of that data and analysis had been prepared prior to the adoption of the Amendment. The most recent data available was from 1995. During the adoption process for the Amendment, at the request of a member of the Board, an ad hoc report containing data and analysis concerning residential development in the County was prepared and presented to the Board. A full and detailed report was prepared subsequent to the adoption of the Amendment. The report, the ARDP Memorandum of June 7, 2000 (hereinafter referred to as the "ARDP Memo"), was reviewed and approved by the Board. The report was also received in evidence during this de novo proceeding and has been fully considered in preparing this Recommended Order. Pursuant to the ARDP Memo for the five-year period 2000-2004, there is a need for 6,252 residential units needed to serve population increases. The 125 percent cap of the ARDP System on new residential units allowed in the County is 7,816 units. This amounts to an additional 1,564 units authorized by the ARDP System over the actual number of units needed based upon population projections. The number of approved/unbuilt units and other offsets against the number of allowed new residential units for the County during this period totals 7,015 units. Consequently, there are 801 units (7,816 minus 7,015) available for development through the end of 2004. These available units are more than sufficient to cover the additional units which may arise as a result of the development of the Subject Property pursuant to the Amendment. For the five-year periods of 2005-2009 and 2010-2014, there are 6,314 and 6,578 units available for development through the end of these periods, respectively. Despite the foregoing, the approval of an addition of 122 units of residential property will increase an already excessive designation of property for residential use. The Impact of the Amendment. The most significant impact of the Amendment is to further increase the amount of land allocated for residential use in the County. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the amount of the increase in the amount of land allocated for residential use in the County. The Amendment will also negatively impact sensitive habitat for endangered species of plants and animals. Development of the Subject Property, however, as Low Density Residential or General Institutional has the potential for the same general negative impact on sensitive habitat. That negative impact is not inconsistent with what the Plan allows. The Amendment will not have a negative impact on the role of the Subject Property as a ground water recharge area or the availability of potable water in the County. Any development of the Subject Property will be subject to County and South Florida Water Management District regulations requiring that there be no effect on the quality or quantity of ground water in and around the Subject Property as a result of development. The only action that will preserve the environmental features of the Subject Property and its role as a recharge area would be to keep the property undeveloped. Neither the current land use designation of General Institutional nor the proposed land use designation of Low Density Residential will ensure that the Subject Property remains undeveloped. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the negative impacts of the environmental features of the Subject Property and its role as a recharge area. The evidence failed to prove that the Amendment constitutes "urban sprawl" as defined in the Plan. The Need for a FLUM Amendment. In order for the Amendment to be approved, since it is an amendment to the FLUM, it must be shown that one of the four items listed in Section 1.11.C.2. of the Plan is met. The evidence proved, and the parties agreed, that the first and fourth items listed in Section 1.11.C.2. of the Plan do not apply to this Amendment. The remaining two items of Section 1.11.C.2. of the Plan are: That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. While there has been an increase in the amount of development to the north of the Subject Property, the area immediately around the Subject Property has not changed. The evidence failed to prove that any change in the character of the area surrounding the Subject Property "has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics. . . ." The second item listed in Section 1.11.C.2. of the Plan has not been met. The County's determination that the remaining item, that the proposed change would correct what appears to be an inappropriately assigned land use designation, is based upon the fact that the current owner, the Land Partnership, is not the type of entity the Plan identifies as an appropriate owner of General Institutional property. Section 4-4.M.1.h. of the Plan provides the following concerning the ownership of General Institutional designated property: Except for investor owner public water and sewer systems and private cemeteries, Institutional land shall be owned by public agencies or non-profit service providers. As a consequence of the foregoing, the only use to which the Land Partnership may put the Subject Property under its current land use classification would be as a cemetery, public water, or sewer system. The latter two uses are not practicable uses for the Subject Property. Although the fact that the Land Partnership knew or should have known of the land use category of the Subject Property and the limitation of the uses to which it could put the property before it purchased it, it still appears reasonable to conclude that the third item of Section 1.11.C.2. of the Plan applies to the Amendment. I. Petitioners' Challenge. On October 28, 1999, the Alliance and Ms. Merrill, jointly filed a Petition for Administrative Hearings with the Division challenging the Amendment pursuant to Section 163.3244(5)(a), Florida Statutes. Petitioners requested a formal administrative hearing pursuant to Sections 163.3187(3)(a) and 120.57, Florida Statutes. On February 1, 2000, Petitioners filed an Amended Petition for Administrative Hearing. Pursuant to the Amended Petition, Petitioners alleged that the Amendment is inconsistent with the requirements of Sections 163.3177 and 163.3180 of the Act, the TCRPC's strategic regional policy plan, and portions of Chapter 9J-5, Florida Administrative Code. Petitioners also alleged in the Amended Petition that the Amendment is inconsistent with Sections 163.3161, 163.3167, 163.3194, and 163.3244 of the Act. These allegations are not relevant to the determination of whether the amendment is "in compliance" as those terms are defined in the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Commission enter a final order finding that the Amendment is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 February, 2001. COPIES FURNISHED: Virginia P. Sherlock, Esquire Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995 David A. Acton Senior Assistant County Attorney Martin County Administration Center 2401 South East Monterey Road Stuart, Florida 34996-1197 Raymond W. Royce, Esquire Carrie Beth Baris, Esquire Holland & Knight LLP 625 North Flagler Drive, Suite 700 West Palm Beach, Florida 33401-3208 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue Ultimately at issue in this case is whether certain comprehensive plan amendments, adopted by Lee County Ordinance No. 94-30, are "in compliance" with Chapter 163, Part II, Florida Statutes. As reflected in the Preliminary Statement, many of the subordinate issues raised by parties seeking to have the plan amendments found to be "not in compliance" have been withdrawn, and others have been stricken as not timely raised or for other reasons. The remaining issues are addressed in this Recommended Order.
Findings Of Fact The FLUM and the Overlay. Lee County adopted its first Comprehensive Plan with a land use map in 1984. On January 31, 1989, the County adopted an amended version of the 1984 Plan intended to plan for growth up to the year 2010 and to comply with the 1985 Growth Management Act requirements. Essentially, the 1989 Plan was very similar to that drafted in 1984. Some major differences were provision of development timing and concurrency, creation of the privately-funded infrastructure overlay, elimination of the fringe land use category, and a variety of other new goals, objectives, and policies (GOP's). Most of the land use categories in the 1984 Plan were carried forward to the 1989 Plan. Almost all of the land use categories are mixed land use categories that allow residential, commercial and in some cases also light industrial uses without any percentage distributions or other objective measurements of distribution among uses. The DCA took the position that the 1989 Lee Plan was not in compliance with the Growth Management Act and filed a petition under Section 163.3184(10). The Department's objection to the 1989 Plan flowed in large part from the alleged overallocation of land for development by the year 2010 that resulted from the categories in the future land use map series (FLUM). Using the County's data and analysis, the DCA concluded that the 1989 map provided for 70 years of growth, to the year 2060, instead of 20 years, to the year 2010. To resolve the 1989 Plan dispute, the County agreed to adopt a 2010 Overlay and create a Density Reduction/Groundwater Resource future land use (FLUE) category (DRGR). The 1989 Plan Compliance Agreement included the following provisions: Amend the Future Land Use Map series by designating the proposed distribution, extent, and location of the generalized land uses required by Rule 9J-5.006(4)(a)1.-9. for the year 2010. These designations will include acreage totals and percentage distributions (illustrated by a bar graph) for about 125 discrete sub-districts encompassing all of Lee County, which, once designated, shall be changed only by a formal amendment to the Lee Plan. The data for these designations shall be consistent with the Lee Plan's population pro- jections for the year 2010. This amendment shall be accomplished by the adoption of over- lay or sub-district maps for the entire County using the concepts developed therefor by Thomas H. Roberts of Thomas H. Roberts Associates and presented publicly to the Board of County Commissioners of Lee County on September 12, 1989, and to the Department of Community Affairs on September 22, 1989. Adopt a policy which will provide that no development approvals for any land use category will be issued in any of the sub- districts described above that would cause the acreage total set for that land use category in 2010 to be exceeded. In accordance with the 1989 Plan Compliance Agreement, the County created a 2010 Overlay. The County first projected future growth in Lee County to the year 2010, using a basic assumption that historic patterns of growth in Lee County, including historic densities, would continue. The County's 2010 population estimate was 757,370 for the entire unincorporated County. The County then assigned acreage allocations for different land uses allowed in each planning subdistrict. In accordance with the 1989 Plan Compliance Agreement, the County adopted the resulting 2010 Overlay, as well as a DRGR FLUE category with a density range of one unit per ten acres, as part of the 1990 remedial plan amendments. The Overlay consisted of Maps 16 and 17, which were added to the FLUM, along with implementing policies in the Future Land Use Element. The 2010 Overlay is, in the words of the 1994 Codification of the Plan, "an integral part of the Future Land Use Map series." Map 16 is a map which divides Lee County into 115 subdistricts. "Map" 17 is not a true map; it is a series of bar tables and pie charts that correspond to acreage allocations for land uses within the subdistricts. Each subdistrict is allocated a specific number of acres for each of the following land uses: residential, commercial, industrial, parks and public, active agriculture, conservation, passive agriculture and vacant. The land use acreage allocations for each Overlay subdistrict are the maximum amount of land which can be developed in that subdistrict. The intent of the 2010 Overlay was to match the amount of development that could be accommodated by the 2010 FLUM with the projected County-wide population for the year 2010. The 2010 Overlay accomplished this in part by assigning percentage distributions, in the form of acreage allocations, to the various uses in the many mixed use categories in the FLUM. Under the Overlay, once the acreage allocation for a particular land use is exhausted, no more acreage can be developed for that land use in that subdistrict unless the Lee Plan is amended. Policy 1.7.6 was adopted to establish an ongoing mandatory review procedure for evaluation and amendment of the 2010 Overlay. On September 6 and 12, 1990, Lee County adopted the 1990 Remedial Plan Amendments and officially revised the original data and analysis supporting the Plan. As the support documents for the 1990 remedial amendments stated: The future land use map series currently contained in the Future Land Use element of the Lee Plan depicts 18 land use categories and has an estimated 70-year population holding capacity. A future land use map series is re- quired by state law and is also a useful and necessary part of the plan in guiding land use and related decisions. The Year 2010 Overlay makes this map series even more useful as a decision-making guide by providing a 20-year horizon in addition to its present longer- term horizon. * * * In addition to this "pure planning" function of the 2010 Overlay, a regulatory function will be added. No final development orders or building permits for any land use category will be issued in any subdistrict that would cause the acreage total for that category in 2010 to be exceeded. The Dwelling Unit Counts and Projections charts in the support documents for the 1990 amendments demonstrate that the 2010 Overlay was designed to greatly limit the number of dwelling units that could be constructed by 2010 compared to the number allowed by the 2010 FLUM without the Overlay. On or about October 29, 1990, DCA published a Notice of Intent to find the 1990 Remedial Plan Amendments in compliance. However, a citizen challenge to the County's 1990 Remedial Plan Amendments resulted in an Administration Commission Final Order that the amendments were not in compliance and that the County had to take certain remedial actions to bring the Plan amendments into compliance. Final Order, Sheridan v. Lee Co. and DCA, 16 FALR 654 (Fla. Admin. Com. 1994)(the "Sheridan Final Order"). The Sheridan Final Order required the County to apply the 2010 Overlay at the development order stage, rather than at the building permit stage. As a result, no development order could be issued which caused the acreage allocations for any given individual subdistrict to be exceeded. The Sheridan Final Order also held that the County had not properly calculated the amount of development allowed by the 2010 Overlay and adopted the following analysis from the hearing officer's Recommended Order: The calculation of a density allocation ratio is part of the determination whether data and analysis support the residential densities in a plan. The analysis misses the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities. The question is whether the densities authorized by a plan are supported by data and analysis, not whether data and analysis support densities some- where between the maximum authorized densities and historic densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures. * * * The purpose of the density allocation calculation, as part of the process of determining if the plan is supported by data and analysis, is not to predict the actual density that will occupy the planning jurisdiction at buildout. The purpose of the density allocation calculation is to compare the maximum density allowed by the plan with the projected population, and consider the extent of the overallocation in the light of other factors in the planning jurisdiction, including plan provisions and relevant data and analysis. The ratio is not required to be 1:1 to satisfy the criterion of supporting data and analysis. But the ratio must be ascertainable in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis. Sheridan Final Order, 16 FALR at 689. As a result, one of the remedial amendments required by the Administration Commission was: To address the density calculation issue the County shall revise the data and analysis to include the maximum allowable densities in determining the amount of development allowed by the 2010 overlay and to show that the amount of development allowed is based on the expected growth. Sheridan Final Order, 16 FALR at 661. The County adopted 2010 Overlay remedial amendments in October, 1994. In December, 1994, the DCA determined that the remedial amendments were in compliance. (The revised data and analysis were not made a part of the record in this case.) On July 1, 1994, the County adopted an Evaluation and Appraisal Report (EAR) for its Plan and subsequently submitted to the DCA the EAR, along with the proposed EAR-based amendments for the year 2020. Among other things, the proposed EAR-based amendments eliminated the 2010 Overlay. Among other things, the DCA's Objections, Recommendations and Comments (ORC) Report objected to the elimination of the 2010 Overlay, taking the position that, without the Overlay, the EAR-based plan had the same allocation-related problems that had been in the 1989 plan. On November 1, 1994, the County adopted a modified version of the EAR- based amendments--still without any Overlay--and submitted these to the DCA, together with its staff response to the DCA's ORC Report. On December 28, 1994, the DCA issued a Statement of Intent to find the EAR-based amendments not in compliance. FLUM Population Accommodation Data and Analysis. The evidence in this case includes data and several different analyses comparing the population accommodated by the plan amendments at issue--i.e., the FLUM without any Overlay--with the population projected for the year 2020. Figure 14. Lee County's proposed population accommodation data and analysis is included in the EAR in Figure 14. Based on Figure 14, the County concluded that the 2020 FLUM accommodates 802,655 persons, or 128 percent of the projected 2020 population (an accommodation ratio of 1.28). Although the FLUM's many mixed use categories do not establish percentage distributions or other objective measurements of distribution among uses, Figure 14 assumes that certain percentages of the many mixed use categories will develop in residential use, based on historic growth patterns. Also based on historic growth patterns, Figure 14 assumes that residential density will be less than the maximum of the standard residential density range allowed in each category although the GOP's allow residential development at much higher densities. Since Figure 14 is based on historic patterns of growth that are expected to continue into the future, Figure 14 appears to predict future growth as accurately as is possible at this time. It probably is the best possible estimate of how Lee County will build out under the proposed amendments. However, the ability to make truely accurate predictions over such a long period of time--25 years--is questionable. Figure 14 assumes that only a fraction of the new Vested Community land use district (Lehigh Acres) will be developed by the end of the planning timeframe. Most of the Vested Community district consists of subdivisions which were approved and platted several years before the adoption of the earliest Lee Plan, and which are vested from the restrictions of the Lee Plan. The Vested Community district contains over 130,000 vested lots which can accommodate at least 271,700 residents. In addition, the Vested Community district contains some land which is not actually vested from the Lee Plan but is allowed to develop at four density units per acre (du/ac). Figure 14 assumes that 45,888 residential units accommodating 95,906 persons will be developed in Lehigh Acres by 2020. There is no goal, objective or policy in the Lee Plan which would prevent the development of more lots vested or allocated in the Vested Community district. Lee County's Figure 14 analysis assumed that the Rural and Outer Islands categories will develop at their maximum residential density of one du/ac. In fact, the Lee Plan includes a Planned Development District Option ("PDDO") which allows: landowners outside the Future Urban Areas to increase allowable densities for development that will be totally independent of county- subsidized facilities and services. (Objective 1.8) The PDDO increases the maximum theoretical residential density of the Rural and Outer Islands districts from 1 du/ac to 6 du/ac. However, due the requirements for use of the PDDO, realistically it cannot be anticipated that much Rural or Outer Islands land will utilize it. Lee County's Figure 14 analysis did not include any residential allocation for the General Interchange category. The General Interchange category allows residential development of 100 residential units at 8 du/ac for every 100,000 square feet of commercial development. If the residential option applied to all 1,436 acres of the General Interchange category, the Lee Plan would accommodate another 13,209 persons in that category. However, for the residential option, the category requires 160 acres under common ownership. Currently, there is only one case in which the requirement is met, and it is a development of regional impact (DRI) that does not allow residential at this time. Figure 14A. Figure 14A is part of the County's response to the DCA's ORC report. It was supposed to adjust Figure 14 by assuming the maximum residential density allowed by each land use category in accordance with the Sheridan Final Order. The Figure 14A accommodated population rises to 1,325,568, and the so-called allocation ratio rises to 2.11. Actually, Figure 14A does not take into account the actual maximum residential density in Intensive Development (22 du/ac), Central Urban (15 du/ac), and Urban Community (10 du/ac). Instead, it uses the top of the "standard density range" in those categories. Figure 14 B. Figure 14B also is part of the County's response to the DCA's ORC report. It adjusts the Figure 14A analysis by estimating the total residential development allowed by the Vested Community category at 170,732 dwelling units, which will accommodate 356,829 persons. Adding those Vested Community numbers to the Figure 14A numbers, Figure 14B estimates the population accommodated by the 2020 FLUM as 1,586,491 persons, or an accommodation ratio of 2.53. Maximum Theoretical Residential Potential. The DCA proposes an analysis of the data using maximum theoretical residential potential for each land use category. Under the DCA analysis, there is enough land available for residential development accommodate a population of approximately 2.5 million people--401 percent of the expected County population in 2020 or, expressed as a ratio, 4.01. In contrast to Figure 14B, the DCA's preferred analysis takes into account all of the residential development capacity in Lehigh Acres. In addition, it assumes residential development in the Vested Intensive Development part of the Lehigh Vested Community at the maximum density of 14 du/ac and in the Vested Central Urban part at the maximum density of 10 du/ac. These assumptions add to the FLUM population accommodation analysis the capacity to accommodate approximately 246,000 more people, over and above the Figure 14B capacity. The DCA's preferred analysis also assumes that all Rural and Outer Islands land will utilize PDDO and develop residentially at 6 du/ac. Use of this assumption more than doubles the population accommodation in those categories, adding approximately 500,000 people to the analysis. While theoretically possible, as previously stated, this assumption is unrealistic. The DCA's preferred analysis also assumes that 13,209 people are accommodated in residential development in the General Interchange category. This assumption, too, is theoretically possible but not realistic. Finally, the DCA's preferred analysis assumes that, although most of Lee County's future land use categories allow a mix of uses, the land will develop at the maximum potential residential densities over the entire land area--i.e., that no other type of permitted use, such as commercial, parks, schools or even roads would occur in any of the land use categories. Finally, it disregards the actual existence of non-residential uses and residential uses at lower densities; instead, it assumes redevelopment at the maximum potential residential densities over the entire land area. County's 2010 Overlay Analysis. It seems obvious that deletion of the 2010 Overlay must increase population accommodation, at least up to the year 2010. Up to the time of the final hearing, the DCA had not requested, and no party did, an allocation ratio analysis of the 2010 Overlay similar to the one the DCA prefers for the 2020 FLUM without any Overlay for purposes of making a comparison between the two. The County's chief planner testified that he performed such an analysis during the course of the final hearing using the maximum residential and maximum density assumptions. Neither the details nor the results of the analysis were clear. However, it appears to indicate that the 2010 Overlay accommodated a 2010 population of 1.06 million, apparently including 282,000 assumed to be accommodated in Lehigh Acres, an allocation ratio of 2.11. Assuming that the County's 2010 Overlay analysis included Lehigh, it can be roughly compared to the Figure 14B analysis and the DCA's preferred "maximum theoretical residential potential" analysis by removing the Lehigh component from each. Subtracting the Lehigh component from the County's 2010 Overlay population accommodation analysis results in a 2010 population accommodation of 778,000. Removing the Lehigh component from Figure 14B results in 2020 population accommodation of 1,229,662. Removing the Lehigh component from the DCA's analysis results in 2020 population accommodation of 2,008,927. Meanwhile, the County's projection of future increased by only about 70,000 between 2010 and 2020 for the entire unincorporated county. RGMC Alternative 2010 Overlay Accommodation Analysis and Comparision. RGMC proposes its own alternative analysis for comparing the population accommodated under the 2010 Overlay to the population accommodated without it. Using the County's population projection for 2020 of 626,860 in the unincorporated county and the accepted 2.09 people per unit, it can be estimated that approximately 300,000 units will be needed in the year 2020. Subtracting the 127,000 units existing in 1990, approximately 173,000 additional units will be needed over the 30 years from 1990 to 2020 to accommodate the expected population, or approximately 5,800 additional units per year. At that average rate, 116,000 units would be added by the year 2010 (5,800 units per year times 20 years). Adding the new units to the 127,000 units existing in 1990 results in a total of approximately 244,000 units in 2010. Since it is agreed that the Overlay was designed to accommodate, and accommodated, approximately the population expected in the year 2010, it can be estimated that the Overlay accommodated approximately 244,000 units. In the sense that all units accommodated under the 2020 FLUM without the Overlay are available for development before 2010, a rough comparison can be made between the population accommodated under the 2010 Overlay and the population accommodated according to the other analysis methodologies: according to Figure 14, the amended 2020 plan accommodates 384,045 units for the year 2020; according to Figure 14A, the amended 2020 plan accommodates 634,243 units for the year 2020; according to Figure 14B, the amended 2020 plan accommodates 759,086 units for the year 2020; and according to the DCA's preferred "maximum theoretical residential potential" methodology, the amended 2020 plan accommodates 1,201,973 units for the year 2020. Calculation and Use of the "Allocation Ratio". The technique of determining a residential density allocation ratio was described in an article entitled "Expanding the Overallocation of Land Use Categories," which appears in a June, 1995, publication of the Department of Community Affairs called "Community Planning." "Community Planning" is published by the Department of Community Affairs "to provide technical assistance to Florida's counties and cities and implement any requirements of Florida's growth management laws." The article announces how the Department reviews the question of "overallocation" in determining whether a plan is in compliance with statutory and rule requirements regarding urban sprawl. According to the article, the Department suggests that a comprehensive plan should allocate up to 125 percent of the amount of land needed to accommodate the projected future population. The article does not explain how the "allocation ratio" should be calculated. The Sheridan Final Order seems to say that maximum densities should be assumed. See Finding 11, above. But neither the "Community Planning" article nor the Sheridan Final Order indicate what other assumptions should be made. The "Community Planning" article and the Sheridan Final Order also do not specify whether, in calculating the allocation ratio, population accommodation capacity should be compared to the total expected population or to the incremental growth expected in the population. The DCA has accepted a 1.25 allocation ratio applied to the total expected population as being reasonable. A major treatise in this area known as Urban Land Use Planning, Fourth Edition, by Kaiser, Godchalk, and Chapin, suggests that an allocation ratio of up to 2.05 can be considered reasonable; however, when doing so, the authors were evaluating plans with a closer planning horizon (one to five years), and they were comparing the population accommodation capacity to the incremental growth expected in the population. When calculating an allocation ratio for a 20-year planning horizon, they suggest that a 1.20 allocation ratio that compares population accommodation capacity to the incremental growth expected in the population would be reasonable. By accepting a 1.25 allocation ratio that compares the population accommodation capacity to the total population expected on a 25-year planning horizon, the DCA seems to have been misapplying the allocation ratio analysis. Clearly, an accommodation ratio comparing the population accommodation capacity to the incremental growth expected in the population would be much than one comparing to to the total population expected. There was no data and analysis as to exactly how much higher, and it is difficult to say based on the record in this case. However, an example of the difference between the too methodologies is suggested by one of RGMC's alternative analyses. It is known that approximately 300,000 units of residential development will be needed for the population expected in the year 2020. See Finding 36, above. The evidence was that there were approximately 143,000 units existing in 1995, so approximately 157,000 additional units will be needed by the year 2020 to accommodate the expected population. Meanwhile, using the County's Figure 14 assumptions, the FLUM without the Overlay makes 384,045 units available for development by the year 2020, or an accommodation of an additional 241,045 units over what was in existence in 1995. Comparing incremental accommodation for growth to the incremental population growth expected by the year 2020 would result in an "accommodation ratio" of approximately 1.54, versus the ratio of 1.28 calculated in Figure 14 comparing to total population expected. By way of further examples, using the same method of comparison: Figure 14A's 2.11 "accommodation ratio" would become a ratio of 3.13, comparing incremental accommodation for growth to the incremental population growth expected by the year 2020; Figure 14B's 2.53 "accommodation ratio" would become a ratio of 3.92; and the DCA's "accommodation ratio" of 4.01 would become a ratio of 6.75. It should be noted that the Urban Land Use Planning treatise also speaks of the use of the allocation ratio as a safety factor to provide a choice of location for housing type and to avoid artificially increasing land and housing prices. Rather than being a device merely to avoid the overallocation of land, the safety factor also is said to be necessary to ensure that enough land is allocated and that the limitations of forecasting approaches do not exacerbate the need for affordable housing. It also should be noted that neither the "Community Planning" article nor the Sheridan Final Order specify that allocation and urban sprawl issues should be determined from the simple calculation of a residential density allocation. To the contrary, the Sheridan Final Order would indicate that, once the allocation ratio is obtained, full consideration should be given to all pertinent factors "in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis." Analyses Not Conducted. The plan amendments do not only eliminate the 2010 Overlay. They also decline to retain the Overlay concept and extend it another ten years to the year 2020. There is no data or analysis in this case comparing the population accommodated by the FLUM without any Overlay to the population that would be accommodated in the year 2020 if the Overlay were extended another ten years to 2020. Such data and analysis would most clearly illuminate the impact of eliminating the 2010 Overlay, and abandoning the Overlay concept, on the residential allocation of the plan for the year 2020. There may be tens of thousands of, up to perhaps almost a hundred thousand, residential units in DRI's that have been approved but not yet built. There was inadequate data and analysis of how many of the residential units that will be needed by the year 2020 can be supplied in these DRI's. Lehigh Acres. Clearly, Lehigh Acres presents a special problem for Lee County and the DCA. Lehigh Acres was platted in the 1950s and 1960s. It covers approximately 97 square miles, which is slightly more than 62,000 acres. Since its inception, Lehigh has had all the attributes of urban sprawl. It is a large, sprawling, almost entirely residential community that was created in an area remote from urban services. It is characterized by grid patterns of development, a poorly-designed transportation network with large numbers of small local roads and no four-lane roads, huge amounts of land allocated to residential development and a relatively small amount of land allocated to commercial development. The roads in Lehigh are built. Virtually all of Lehigh has been subdivided into relatively small single family residential homesites, and almost all of these homesites have been sold to buyers all over the world. By virtue of the platting and sale of the land into homesites, Lehigh is a vested community. Over the years, the County has considered a number of potential solutions to the Lehigh Acres dilemma. Ultimately, the County decided to take a multi-pronged approach: (1) creating restrictions on additional subdivision and attempting to reduce densities to no more than four units per acre; (2) continuing the privately-funded infrastructure overlay as the means of providing infrastructure in Lehigh; and (3) utilizing sector planning to work toward a better transportation system and larger areas of commercial allocation to create a more balanced community. Based on the new treatment of Lehigh Acres, the County engaged in different assumptions about how Lehigh will build out. In 1989, Lehigh was shown as "central urban" and "urban community," together with the rest of the Lee Plan future land use categories. Under the 2010 Overlay, the County purported to reduce acreage allocations in Lehigh, but in fact there was little impact on residential potential due to vesting. In the EAR-based amendments, Lehigh is shown under "Vested Community," a separate land use category. Through the vested community category, the County attempted to restrict additional subdividing of lots and, with a few limited exceptions, set a maximum density of four units per acre. Based on the different treatment of Lehigh in the Plan, the County projected a population for Lehigh based on the amount of growth actually expected to occur by Year 2020. To do this, the County utilized eight different methodologies and averaged the projections to come up with a 2010 population for Lehigh of 95,906. These assumptions are reflected in the County's Figures 14 and 14A. Neither the Department's rules nor the "Community Planning" article provide specific guidance as to how vested areas are to be treated in making a calculation of a plan's "allocation ratio." The vast area of Lehigh has the capacity to absorb virtually all the anticipated future population growth in unincorporated Lee County through the year 2020. In fact, it may be appropriate for Lee County to increase overall density in Lehigh if necessary to support the infrastructure and transportation needed to convert Lehigh Acres into a more balanced, multi-use development. Lee County's approach to Lehigh essentially was to attempt to satisfy the Department's desire for an acceptable "allocation ratio" by estimating how many residents will actually live in Lehigh by 2020, assuming the Plan's treatment of Lehigh, and treating those estimates as Lehigh's population accommodation. By studying historic rates of growth, the Lee Planning Division believes that number will be approximately 96,000 people. No evidence was presented by the Department or any intervenor in contradiction of this estimate. The results of the County's approach to Lehigh are reflected in the County's Figures 14 and 14A. Another approach would be to attempt to reduce residential development in other parts of the County. It would be poor planning to reduce densities "across the board" throughout the County just to achieve a lower allocation ratio. Such an approach could direct population concentration away from urban areas into poorly-served rural areas, thereby discouraging the efficient use of land and encouraging sprawling uses. Depending on the densities, it could direct growth to remote areas of the county. Additionally, if Lee County attemped to limit residential growth based on incorrect assumptions regarding future densities, it could seriously underallocate land uses. Underallocation can greatly inflate land costs to the detriment of the general public. On the other hand, a better approach might be to couple sector planning in Lehigh with a reduction in densities in certain other parts of the County. If successful, such an approach could both create more balanced development in Lehigh Acres and direct future growth to Lehigh and away from coastal high hazard areas (CHHA), DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. Commercial Allocations. The 2020 Lee Plan, without the 2010 Overlay, has some guidance for the location of commercial development, especially retail commercial. But it does not have percentage distributions or other objective measurement of the distribution of commercial and other uses allowed in its many mixed land use districts. Policy 6.1.2 of the 2020 Lee Plan consists of site location criteria which apply to retail commercial development, such as shopping centers, restaurants, gas stations, and other commercial development generating large volumes of traffic. Non-retail commercial development, such as office, hotel and motel or wholesale commercial development, may be developed at the identified intersections or anywhere else in the land use categories which allow commercial development. Even retail commercial can be developed at locations which do not meet the location criteria under discretion granted to the Board of County Commissioners. According to Lee County's EAR, the Commercial Site Locations Standards Map (Map 16) identifies 52 full intersections and 15 half-moon intersections which comply with the site location standards for Community Commercial and Neighborhood Commercial. They represent 9,520 acres of land designated for retail commercial development. Using the standard planning conversion rate of 10,000 square feet per acre, average, there is room for approximately 95,000,000 square feet of commercial development in the commercial sites depicted on Map There also may be other intersections which meet the criteria for Community Commercial or Neighborhood Commercial but are not shown on Map 16. In addition, there are numerous intersections which meet the criteria for Minor Commercial which are not shown on Map 16. Map 16 also does not include Regional Commercial development. The report by Thomas H. Roberts & Associates on Commercial Land Use Needs In Lee County (Jan. 10, 1987), indicates that the retail space ratio in Lee County is 26 square feet per capita. Just counting the 95,000,000 square feet of retail commercial development allowed in the land shown on Map 16, the 2020 Lee Plan has enough retail commercial capacity to accommodate 3.7 million people. Without even considering the non-retail commercial uses that can be developed at any location in the several land use districts which allow commercial uses, or the unknown amount of retail commercial that can be developed at the numerous intersections which meet the Minor Commercial location criteria, the 2020 Lee Plan without the 2010 Overlay allows commercial development far in excess of the amount needed to accommodate the projected 2020 population. Industrial Allocation Policy 7.1.4 in the 2020 Lee Plan provides: The [FLUM] shall designate a sufficient quantity of land to accommodate industrial development that will employ 3 percent of the county's population in manufacturing activities by the year 2010. The 2020 FLUM, without the 2010 Overlay, designates 6,062 acres in the Industrial Development category. Three percent of the 2020 County population represents approximately 19,000 people. The 1984 Roberts industrial land analysis for Lee County suggested a ratio of seven industrial workers per acre for industrial related activities. Most industrial land uses employ more workers per acre, and the national average is about 17 employees per acre. But even using the ratio suggested by the Roberts analysis, Lee County would need only approximately 3,000 acres of industrial land to accommodate three percent of the 2020 County population in industrial employment. Analysis in the EAR indicates that enough additional industrial land is needed to serve the needs of municipal populations that probably cannot or will not be supplied within the cities themselves and that this additional land accounts for the apparent excess in industrial lands allocated in the county. However, it is not clear from the data and analysis how this determination was made. In addition, light industrial development is permitted in several other mixed land use categories. For example, the existing approximately 2,800 acres of Airport Commerce (AC) located to the northwest of the airport is intended to include light industrial activities. There was no data or analysis as to how much additional industrial use will be made of land in those categories. There are no percentage distributions or other objective measurements of the distribution of land uses in the mixed land use districts that allow light industrial use. The Mixed Land Use Districts. As has been seen, the Lee Plan without any Overlay makes extensive use of mixed land use districts without percentage distributions or other objective measurements of distribution among uses. Much of the dispute between the parties as to residential accommodation and allocations of land for commercial and industrial uses results from the lack of percentage distributions or other objective measurements of distribution among uses in the plan's mixed land use categories. Although the County predicts development of only a percentage of these districts as residential, it remains possible for much larger percentages to be developed residential. On the other hand, it is possible for practically all of mixed land use districts to develop commercially or even industrially. The 2010 Overlay attempted to address the lack of percentage distributions or other objective measurements of distribution among uses in the plan's mixed land use districts by limiting the acreage that could be developed in particular uses by the year 2010. Without the Overlay concept, no percentage distributions or other objective measurements of distribution among uses remain in the plan. Because of the plan's extensive use of mixed use districts, the County's ability to control development through the plan is seriously undermined. Other Urban Sprawl Considerations. Unincorporated Lee County contains approximately 685 square miles. Lehigh Acres and the DRGR areas, combined, are approximately 199 more square miles, 29 percent of the total area of unincorporated Lee County. Except for the growth that will occur in the Vested Community of Lehigh, much of the future growth in Lee County will occur in the I-75, U.S. 41 corridor, which is oriented in a generally North-South direction and contains most of the urbanized areas of the County, including the City of Fort Myers. Because this area is already largely urbanized, most of the growth in it will result in either the expansion of existing urbanized areas or in-fill between existing urban areas. Certificated water and sewer franchise areas also generally coincide with the north/south urban core in which growth is expected to continue. The presence of water and sewer franchise areas in the north/south urban core and in Lehigh Acres encourages utilization of these areas through the ability to provide urban services. The absence of water and sewer franchise areas in other portions of the County will act as a hindrance to development in areas which are undeveloped and either in conservation or agricultural use. A review of County DRI approvals, together with approved development orders, also appears to indicate a trend toward development in the north/south core. The absence of development orders in most of the outlying areas, indicated as either agricultural, vacant, or conservation use, indicate that probably relatively little growth will occur in those areas. Platted subdivisions also appear to show a trend toward development in the north/south urban core. In general, there also appears to be a correlation between existing land uses and those factors which can reasonably be expected to establish future growth trends in the north/south urban core. Growth in the north/south I-75, U.S. 41 corridor across the county line to the south in Collier County tends to encourage similar growth at the southern end of Lee County. Meanwhile, there are hindrances to development across the county line to the east and southeast by virtue of the presence of agricultural lands and regional wetland systems such as the Corkscrew Swamp and the Everglades. The County has also made use of sector planning. The County's sector plans represent extensive and detailed planning studies which in many cases are reflected in both the FLUM and the policies in the Plan. However, currently there is no sector plan for Lehigh Acres. Policy 1.5.5, creating the Vested Community category for Lehigh, states a sector plan for Lehigh will be developed beginning in 1996. In terms of land uses, the Plan seems to be fairly well functionally related, both in terms of what is shown on the FLUM and the relation between the FLUM and the Plan policies themselves. A good example of this is the commercial site location standards, which establish a strong functional relationship between transportation and regional commercial facilities. There is also a good functional relationship between existing land uses. The Plan mixed use categories appear to recognize and attempt to encourage sound functional relationships between home, work, and shopping. The Plan also has compatibility standards that help maintain functional relationships. However, without the Overlay, the many mixed use categories in the Plan do not contain a percentage distribution or other objective measurement of distribution among mixed uses within the mixed use districts. In terms of land use suitability, the County generally appears to be designating for development those areas which are most suitable for development. However, because it allows development of all kinds throughout the County in excess of what is needed by 2020, the Plan allows development in less suitable areas. A variety of methodologies and assumptions leads to the conclusion that the Lee Plan generally is an urban development plan, not a rural development plan. For instance, under the Figure 14 methodology, 80 percent of the population is directed toward urban land uses, and 12 percent into rural. Under Figure 14B, which unrealistically assumes that all of Lehigh Acres will be built out within the planning time frame, 90 percent of the population is directed to urban areas, and only 10 percent to rural. Even assuming that 100 percent of the land will be used for residential purposes, and that all of Lehigh will build out within the planning time frame, 92 percent is directed to urban areas, and only 8 percent to rural. Finally, even assuming 100 percent of the land to residential at maximum densities, and also that all rural land uses will use the PDDO option at six units per acre, only 4 percent of the population will be directed to rural areas in the FLUM. Notwithstanding the overall patterns of growth in Lee County, it clearly is indicated in the Sheridan Final Order that land in Lee County historically has been used inefficiently and that, without the Overlay, the plan allows inefficiency to continue unabated. This is due in large part to the extensive use of mixed land use categories that do not contain a percentage distribution or other objective measurement of distribution among mixed uses within the mixed use districts, together with the overallocation of land that also results in part from their use. By comparing the FLUM's since 1984 with the current Existing Land Use Map (ELUM) (Lee 56), it is apparent that rural designations have not preserved agriculture. Significant parts of county that have been designated rural since 1984 actually have been developed residential or non-agricultural use. In Range (R) 25 East (E), Township (T) 45 South(S), Sections 31 and 32 are residential, while 33 is a golf course. Similarly, R 25 E, T 47 S, Sections 14, 15 and 23 have developed significantly residential and part of Section 14 is now designated Outlying Suburban. In addition, significant residential development has occurred in areas of Pine Island that have been designated rural since 1984. On the other side of the coin, much of the "New Community" still is in rural use (R 35 E, T 45 S, Sections 1, 2, 3, parts of 10, 11, and 12; R 26 E, Sectons 5-8, 17 and 18.) Some "Industrial Development" land is actually still in rural use or vacant--R 25 E, T 46 S, Section 3 west of I-75, and Sections 4- There is significant land that actually is rural or vacant adjacent to wetlands and Estero Bay in R 24 E, T 45 S (Sections 28, 29, and 31-35), together with Sections 3-5, 8-10, and 15 in R 24 E, T 46 S, that are designated for Suburban or Outlying Suburban uses. Land designated rural, open land or fringe in 1984 has been redesignated for urban uses over the years. A large block straddling Daniels Parkway east of the 6 Mile Cypress Strand has been designated Outlying Suburban. Approximately between Buckingham Road, Orange River Boulevard and I-75, rural land has been redesignated as Rural Community Preserve. Large blocks of land, one at the extreme north end of the county between U.S. 41 and I-75, and the other east of I-75 near the river, have gone from rural to Outlying Suburban. A large amount of what was rural and fringe between Bonita Springs and San Carlos Park, west of U.S. 41, has become Suburban and Outlying Suburban. CHHA and Hurricane Evacuation and Shelter. Objective 75.1 of the amended Lee Plan defines and delineates Coastal High Hazard Areas (CHHA) for the first time. Previously, the plan referred to the Federal Emergency Management Agency (FEMA) "A Zone," which encompasses somewhat more land than the new CHHA. Policy 75.1.4 of the amended Lee Plan, which formerly applied to the "A Zone," states: Through the Lee Plan amendment process, land use designations of undeveloped areas within [CHHA] shall be considered for reduced density categories (or assignment of minimum allowable densities where density ranges are permitted) in order to limit the future population exposed to coastal flooding. In this round of amendments, the County did not consider either reducing density categories, or assigning the minimum allowable densities in categories with a range of densities, in undeveloped land in the CHHA. In prior rounds of amendments, the County reduced densities in areas that would be inundated by Category 1, 2 and 3 hurricanes (which would include CHHA). Assuming maximum allowable densities together with the other Figure 14A assumptions, the density reductions reduced population accommodation by 13,000 units in those areas. Elimination of the 2010 Overlay opened additional land to immediate development in the CHHA. There was no data and analysis on the amount of new land opened to immediate development or the additional population accommodated in the CHHA that would result. Goal 79 in the Lee Plan, as amended, is to "provide evacuation and shelter capabilities adequate to safeguard the public against the effects of hurricanes and tropical storms." Objective 79.1 of the Lee Plan, as amended, is to restore evacuation times to 1987 levels by 2000, and to reduce the clearance time portion of evacuation time to 18 hours or less by 2010. Previously, the plan's objective was to achieve 1987 evacuation times by the year 1995. Lee County has among the best hurricane planning efforts in southwest Florida. Nonetheless, as of the time of the final hearing, evacuation times still exceeded 1987 levels, and clearance times exceeded 18 hours. Little progress had been made toward the previous objective to achieve 1987 evacuation times by the year 1995. That is why the objective was extended five more years until the year 2000. It may be that the 2010 Overlay was not designed with hurricane evacuation times in mind. It also is true that the County's evacuation plans are updated every three years based on actual development data. But it also is true that additional development in the CHHA due to elimination of the 2010 Overlay may make it more difficult to achieve Objective 79.1, even as amended. Objective 79.2 of the Lee Plan is to make adequate shelter space available by the year 2010 "for the population in the Hurricane Vulnerability Zone at risk under a Category 3 storm." There was no data and analysis of the impact of eliminating the 2010 Overlay on the County's ability to achieve either Objective 79.1 or Objective 79.2. There also was no data and analysis of the impact of amending Objective 75.1 and 75.1.4 to reduce the size of the coastal area subject to consideration for land use density reductions on the County's ability to achieve either Objective 79.1 or Objective 79.2. Change of Alico Property from DRGR to AC. Another significant FLUM amendment in the EAR-based amendments was to change the designation of 1400 acres of property owned by Alico, Inc., from DRGR to Airport Commerce (AC). Uses allowed in the AC district include light manufacturing and assembly, warehousing, distribution facilities, ground transportation and airport related terminals or transfer facilities, and hospitality services. Suitability. Policy 1.4.5 of the plan, as amended, defines DRGR as "upland areas that provide substantial recharge to aquifers most suitable for future wellfield development" and as "the most favorable locations for physical withdrawal of water from those aquifers." Although previously designated DRGR, more recent data and analysis calls this designation into question. The amendment property does provide some recharge to both the water table (surficial) aquifer and the underlying Sandstone aquifer, but it does not provide above-average groundwater recharge for either aquifer (or any recharge to any of the deeper aquifers). In addition, it is not a good site for the development of a wellfield in either the water table or the Sandstone aquifer. The water table aquifer is not especially thick, and there are too many wetlands on the site for production from the water table aquifer. (Pumping from the water table aquifer next to the airport also could be problematic in that the stability of the soil under the airport could be affected. (Cf. Finding 100, below.) In the Sandstone aquifer, groundwater flows away from the site, making it unsuitable for production. Despite the questions raised by the new data and analysis, the amendment property may still be suitable for designation as DRGR. But that does not necessarily make it unsuitable for AC use. In terms of location, the amendment property is perfectly suited to AC use. I-75 and other AC-designated property is to the immediate west of the amendment property. The Southwest Florida International Airport is to the immediate north of the amendment property. A second runway and a new cargo handling facility are planned for construction to the south of the existing airport runway. When built, the new facilities will practically be touching the northern boundary of the amendment property, and the proposed new south airport access will cross the amendment property and intersect Alico Road, which is the southern boundary of the amendment property. Commercial and industrial use on the property would not pose an unreasonable threat to contaminate either existing or future potable water wells. Theoretically, stormwater from the amendment property could contain contaminants which could eventually migrate to a drinking water well. But the threat of such contamination is small. Permitting criteria adopted and imposed by the South Florida Water Management District will require all construction on this site to conform to surface water quality standards through Chapter 373, Florida Statutes, and permitting rules of the Water Management District within Chapter 40, Florida Administrative Code. These rules will require on-site detention and retention of stormwater which will greatly reduce the threat of surface contaminants leaving the property. Additionally, all surface water runoff from the property, and most groundwater, will be intercepted by the Alico Road Canal, which drains in a westerly direction away from any existing drinking water wells. If any contaminants from the amendment property were to enter the groundwater, avoid the Alico Road Canal and leave the property, they would have to migrate a considerable distance to reach a potable water wellhead. The only wellfield pumping, or planned to pump, from the water table aquifer which contaminants possibly could reach would be the existing Gulf Utilities wellfield approximately one mile and a half southeast of the amendment property. Contaminants within the groundwater move at a slower speed than the water itself. Most contaminants move at a much slower speed than the water. Thus, the chances are very slight that contaminants from the amendment property would threaten the Gulf Utilities wellfield. Any metals in the groundwater would attach to soil particles and migrate extremely slowly. Other potential contaminants would eventually break down within the soil as they slowly migrated away from the site. It was estimated that the travel time from the closest portion of the amendment property to the Gulf Utilities well field would be in the neighborhood of 50 to 100 years. If any such contaminants did reach the wellfield they would be in such dilute concentrations that they would pose no health hazard. The only other wellfield that is reasonably close to the proposed site is the Florida Cities well field to the northeast. This wellfield taps the Sandstone aquifer. The Sandstone aquifer is separated from the water table aquifer by an approximately 40 foot thick semi-confining layer. This layer is composed of silt and clay which provides hydraulic separation between the aquifers. There are no known breaches of the semi-confining layer in this area. The direction of flow and the nature of the semi-confining layer also make it extremely unlikely that contaminants from activities on the amendment property and discharged from the site by stormwater could migrate to the Florida Cities water wellfield. The groundwater in the water table aquifer flows generally southwest, and the confining layer has low leakance values. Additionally, safety measures required for the development of the amendment property include the installation of monitoring wells and the requirement to use the best environmental management practices. The data and analysis includes panther sitings in the vicinity of the amendment property. There also is evidence that the amendment property is part of land that has been labeled as "Panther Priority 2." The significance of this label was not clear from the evidence. In any event, while part of the "Panther Priority 2" land, the amendment property clearly also is surrounded by uses not particularly suited for panthers. Currently, rock mining is occurring on property to the east and to the south of the amendment property. Rock mining on the amendment property itself also is allowed under its previous DRGR designation. The airport is immediately to the north, and both other AC property and I-75 are immediately to the west. In light of those developments, the "Panther Priority 2" designation does not make the amendment property unsuitable for AC designation. Need. The County has a legitimate need to diversify its economy so that it is not so dependent on tourism. It is the County's perogative to attempt to develop its regional airport into an international trade center. In view of the suitability of the amendment property for AC, and its projected role in furthering the County's plans to develop its regional airport into an international trade center, the amendment property should be viewed as a valuable economic resource in need of protection. It is appropriate, when trying to protect a resource, to plan for the needs of generations to come. If the amendment is not approved, there is a good chance that the land eventually will be used for a rock mine. Residential use in that location is incompatible with airport noise. A public gun range is a permissible use of DRGR property, but there are no plans for a public gun range on the amendment property, and such a use also would not be compatible so close to the airport and would be unlikely. Although agricultural use as pasture is possible, ultimate use of the property for pasture seems less likely than rock mining. As previously mentioned, the land immediately to the east of the subject parcel and to the south of the subject parcel is being utilized as rock pits. If the amendment property eventually is used for rock mining, the land would be excavated into what becomes deep lakes. In all likelihood, such a use would permanently preempt the land in question from being a commercial resource that could be utilized in conjunction with the airport. Of the 1400 acres of amendment property, approximately 800 acres are jurisdictional wetlands; only about 600 acres of uplands actually can be used for AC purposes. Meanwhile, approximately 173 acres of industrial land has been rezoned to other uses within Lee County between 1990 and the date of the hearing. Another 300 acres of AC are to be incorporated into the new airport expansion. But there was no data or analysis as to how much of those 473 acres consist of wetlands. Utilizing the 1984 Roberts methodology, the County has analyzed the need for industrial land in the County and has concluded that the addition of the amendment property is necessary to meet those requirements. However, as previously mentioned, it is not clear how the County's analysis was conducted or what the actual needs for industrial land in the County are. In addition, several mixed land use categories permit light industrial use but do not establish percentage distributions or other objective measurements of the distribution among the mixed uses within those categories. Taken as a whole the data and analysis does not establish that the AC amendment is necessary to meet the need for industrial land in the County. Adequate data and analysis to establish those needs is necessary to determine whether other land where industrial use is permitted should be redesignated if the AC amendment is to be adopted. As previously discussed, Lee County has much more land designated for commercial development than will be needed to accommodate the projected 2020 population. See Findings 58-68, above. In support of their position that the AC map amendment is needed in order to meet the demand for airport-related industrial and commercial development that will be generated by the expanding Southwest Florida International Airport, Lee County and Alico point out that international airports serve a larger area than a single County, and that a larger AC district near the Airport will serve the Southwest Florida region. With its new runway and larger terminal with new cargo handling facility, the Airport Authority intends, and the County would like to encourage, a large increase in airfreight handled by the Airport by 2020. Alico prepared a Response to DCA's ORC, which attempted to compare the acreage of approved, large-scale commercial and industrial development near the Orlando International Airport to the amount of acres proposed for Airport Commerce near the Southwest Florida International Airport. However, the Alico Response failed to take into account the amount of approved development near the Orlando Airport which is vacant. According to the Alico Response, the Orlando International Airport handled 233,587 tons of airfreight in 1994. Also according to the Alico Response, 7,152 acres of industrial and commercial development, including ten DRI's, are located near the Orlando Airport. The ten DRI's located near the Orlando Airport include 55,464,770 square feet of approved industrial and commercial development. But as of June of 1995, only 3,386,744 square feet of industrial and commercial development, or 6.11 percent of the approved industrial and commercial square footage, had been constructed. Applying the percentage of approved industrial and commercial in DRI's actually developed by 1995 (6.11 percent) to the acreage approved for industrial and commercial (7,152 acres), it can be determined that 440 acres of existing industrial and commercial development were supporting the 233,587 tons of airfreight handled by the Orlando Airport in 1994. Based upon the Orlando Airport experience, it would appear that each acre of industrial and commercial development near an airport supports 534.54 tons of airfreight each year. The Southwest International Airport projects that 196,110 tons of airfreight will be handled by the Airport by 2020. Dividing the projected 2020 tonnage by the 534.54 tons of airfreight per acre from the Orlando Airport experience, it would appear that the air freight activities projected for the Southwest Florida International Airport by the year 2020 will support only about 367 acres of AC. The Lee Plan FLUM already includes approximately 2800 acres of AC located to the northwest of the Airport. (It is not clear whether the 300 acres consumed by the runway expansion should be deducted from the 2850 acres of AC said to currently exist.) The existing AC district is essentially undeveloped. The AC which already exists to the northwest of the Airport is more than sufficient to support the airfreight which the Airport expects to handle by 2020. Zemel FLUM Amendment. Background. The Zemels own approximately 8600 acres of land in northwest Lee County. The 1990 Comprehensive Plan amendments which resulted from the settlement between Lee County and DCA, designated Zemel property as DRGR with a residential density of one unit per ten acres. The DRGR designation for the Zemel property was determined to be in compliance with the Growth Management Act. Zemel v. Lee County & DCA, 15 FALR 2735 (Fla. Dept. Comm. Aff. 1993), aff'd, 642 So. 2d 1367 (Fla.1st DCA 1994). Based in part on data and analysis which were not available at the time of adoption of the DRGR category, a circuit court determined that the Zemel property did not meet the criteria for inclusion in the DRGR category. The circuit court ordered that: The property is hereby restored to the Rural land use classification on the Future Land Use Map of the Lee Plan, including restoration of the subject property's density to 1 du/acre and use of the Planned Development District Option for the property. This action shall not preclude the County from amending its plan, including the 2010 Overlay, as it pertains to the Zemel property, pursuant to Chapter 163, Fla. Stat., subject to constitutional limita- tions and other requirements of law. Placement of Zemel Property in Open Lands Classification The 1994 EAR-based amendments changed the land use designation of the Zemel property to Open Lands. Open Lands is a new category created by the EAR- based amendments in Policy 1.4.4. The residential density allowed in the Open Lands category is one unit per ten acres, except a density of one unit per five acres is permitted if the planned development process is used to prevent adverse impacts on environmentally sensitive lands (as defined in Policy 77.1.1.4). (Commercial and industrial uses are permitted in the Open Lands category in accordance with the standards in the Rural category.) Of the 8,600 acres owned by Zemel, approximately 1,900 acres are wetlands and 6,700 acres are uplands. Lee County chose the Open Lands category for the Zemel property because it was the least intensive land use category available after the circuit court determined that the DRGR category was not appropriate, and because the County did not wish to exacerbate the overallocation of the FLUM. According to new Policy 1.4.4: Open Lands are upland areas that are located north of Rural and/or sparsely developed areas in Township 43 South. These areas are extremely remote from public services and are characterized by agricultural and low-density residential uses. It was not proven that the Zemel property does not meet the Policy 1.4.4 definition of Open Lands. The Zemel property clearly is in Township 43 South. It is north of areas that can be said to be "sparsely developed." The Zemel property clearly is characterized by agricultural use. Finally, although some of the Zemel property is not "extremely remote" from some public services, all of the Zemel property can be said to be "extremely remote" from at least some public services, and some of the Zemel property can be said to be "extremely remote" from all public services. Placement of the Zemel property in the Opens Lands category was based on adequate data and analysis. To the extent that data and analysis in the EAR may have been lacking, the evidence at final hearing included adequate data and analysis. Using the Figure 14 methodology, the County calculated that Open Lands category would accommodate 2,073 people, as compared to 8,293 people at the Rural density. However, assuming development of all of the Zemel property at the one du/ac standard density allowed by the Lee Plan for Rural, 14,003 people (1 du/ac x 6700 upland acres x 2.09 persons/unit) would be accommodated. In the case of the Zemel property, such an assumption would be less unrealistic than in many other parts of the County since it is a large, vacant tract. The evidence also was that the Zemel property is one of the few parcels of land in the County in which use of the PDDO is a realistic possibility. Assuming maximum densities under the PDDO, the Zemel property under the Rural designation could accommodate 84,018 people (6 du/ac x 6700 upland acres x 2.09 persons/unit). Under the Open Lands category, even at the maximum density allowed for planned developments, the Zemel property could accommodate only 2,801 people (1 du/5 ac x 6700 upland acres x 2.09 persons/unit). Dependence of Open Lands on Deletion of Overlay Section 10 of the Lee County Ordinance 94-30, which adopted the plan amendments in issue in this case, purported to defer, until after the conclusion of these proceedings, the decision as to which adopted plan amendments would become effective. Although all of the parties now agree that the attempted deferral of this decision was "ultra vires," the evidence was that one purpose of Section 10 of the ordinance was to insure that intended packages of amendments would remain together and either become effective together or not at all. Specifically, there was evidence that the amendments to the FLUM and to FLUE Policy 1.4.4, changing the land use designation of certain property to "Open Lands," was intended to remain together with the amendments which delete the FLUM 2010 Overlay, and to either become effective together or not at all. Otherwise, there would be no development authorized in property redesignated "Open Lands" because there was no land use category called "Open Lands" at the time of adoption of the 2010 overlay, and no express authorization for development of any kind in "Open Lands." Planning Timeframe. Clearly, the EAR-based Lee Plan amendments are intended to plan through the year 2020. The year 2020 was chosen for the amendments to enable the County to make use of the best available demographic projections being generated by the Metropolitan Planning Organization for that time frame. The Parks, Recreation and Open Space Element of the plan, as amended, retains Map 11. Map 11 depicts "Future Recreational Uses within Generalized Service Boundaries." It is the map that was generated in 1989 and used in the 1989 and subsequent plans for the year 2010. However, it was not proven that the map does not accurately depict "Future Recreational Uses within Generalized Service Boundaries" for the year 2020. The County concedes that the Community Facilities and Services Element of the plan, as amended, projects waste generation and recycling rates only from 1991 to 2015. The County contends that these projections are easily extrapolated to the year 2020, and no party disputes this. The County's response to the DCA's ORC report indicates that the Hurricane Shelter/Deficit analysis for the Conservation and Coastal Management Element is for shelter needs to the year 2000. However, the County cannot accurately project shelter needs much further in the future. The evidence is that the better practice is to plan for shorter periods of time and continually update the projections. This is what the County does. It was not proven that the County is planning for the wrong timeframe or that its plan is defective for that reason. Other alleged uses of the wrong planning timeframe actually arise from questions as to the allocation of land to meet the needs of the County through the year 2020. There is no question whether the County's intent is to plan for the year 2020. The dispute is whether land has been overallocated. Other Alleged Internal Inconsistency. Amended Objective 100.1 in the Housing Element uses data for the County, including municipalities, in projecting the number of housing units needed for the 2020 timeframe. It is true that EAR Figures 14, 14A and 14B, which analyze the FLUM, identify the number of units which may be accommodated for the unincorporated area. But EAR Figures 12 and 13, which also analyze the FLUM, are directed to the entire county, including municipalities. Besides, it is clear that the County understands its obligation is only to implement affordable housing with respect to the unincorporated county. Water Supply. The Regional Water Supply Master Plan (RWSMP) serves as supporting data for several amended policies in the Potable Water sub-element of the Community Facilities and Services Element. The purpose of the RWSMP was to ensure an adequate, reliable and cost-efficient supply of potable water to meet the current and future needs of Lee County to the Year 2030 and beyond, considering both economic and environmental factors. The County's reliance on implementation of the RWSMP for this purpose is justified. Preparation of the plan was a very complex undertaking. In preparing the population projections on which the Regional Water Supply Master Plan relies, the County's consultant attended the technical staff meetings of the individuals with the Metropolitan Planning Association (MPO) charged with preparing the MPO population projections. The MPO Countywide population projections utilized in the RWSMP were prepared by estimating the number of permanent residents and taking into account a number of other economic characteristics and social characteristics such as the number of children per household, historic and expected natural and State trends, and the degree to which these trends will affect the future of Lee County. The Lee Plan, as well as the Comprehensive Plans of the other governmental jurisdictions in Lee County, were utilized in preparing the RWSMP. It was a plainly spelled out requirement for preparation of the Master Plan that it had to be consistent with the Comprehensive Plans of the County and cities in Lee County. The MPO population projections are reasonably accurate, and they are the best available data for purposes of planning water supply. The MPO projections are preferable to the "maximum theoretical" population accommodation used in the DCA's residential allocation analysis. Regardless of the appropriate analysis for purposes of determining whether a plan overallocates land, it would not be appropriate to plan water supply based on unrealistic population projections. The RWSMP uses MPO 2020 population projections that are somewhat different from, but reasonably close, to the 2020 population projections reflected in Figure 14 and used to support the FLUE of the Lee Plan. The special purposes of the RWSMP projections justify the differences. Besides, the differences are not large enough to prove beyond fair debate that the plan is not internally consistent. Wetlands Protection. Prior to the County's adoption of the EAR-based amendments, Goal 84 in the Conservation and Coastal Management Element of the Lee Plan and its objectives and policies included guides for local land development regulations in the protection of wetlands by establishing allowable land uses and their densities, and by establishing design and performance standards for development in wetlands. The County modified Policy 84.1.2 (renumbered 84.1.1) in part by deleting a prohibition against the construction of ditches, canals, dikes, or additional drainage features in wetlands. Ditches, canals and dikes could be constructed in wetlands to have beneficial effects. For example, a ditch could be built to increase the hydroperiod of a wetland and result in a benefit. A dike could enhance a mitigation area, which would also result in environmental benefits. Thus, the repeal of this prohibition could benefit wetlands. The 1984 data and analysis contained in the EAR recommended that the prohibition be deleted and instead suggested the use of performance standards for the construction of ditches, canals, dikes, or other drainage features in wetlands. The EAR-based amendments to the Lee Plan do not include performance standards for the construction of ditches, canals, dikes, or other drainage features in wetlands. Instead, the County has modified Policy 84.1.1 (renumbered 84.1.2) in part by deleting the following language: Wetland regulations shall be designed to protect, conserve, restore, or preserve water resource systems and attendant biological functions, including: Preventing degradation of water quality and biological productivity. Preventing degradation of freshwater storage capabilities. Preventing damage to property and loss of life due to flooding. Preventing degradation of the viability and diversity of native plants and animals and their habitats. Assuring the conservation of irretrievable or irreversible resources. In place of those performance standards, the EAR-based Policy 84.1.2 provides: The county's wetlands protection regulations will be amended by 1995 to be consistent with the following: In accordance with F.S. 163.3184(6)(c), the county will not undertake an independent review of the impacts to wetlands resulting from development in wetlands that is specifically authorized by a DEP or SWFWMD dredge and fill permit or exemption. No development in wetlands regulated by the State of Florida will be permitted by Lee County without the appropriate state agency permit or authorization. Lee County shall incorporate the terms and conditions of state permits into county permits and shall prosecute violations of state regulations and permit conditions through its code enforcement procedures. Every reasonable effort shall be required to avoid or minimize adverse impacts on wet- lands through the clustering of development and other site planning techniques. On- or off-site mitigation shall only be permitted in accordance with applicable state standards. Mitigation banks and the issuance and use of mitigation bank credits shall be permitted to the extent authorized by applicable state agencies. As a part of the EAR-based amendments, the County also modified Policy 84.1.4 by deleting language that addressed permitted uses in wetlands and their densities, but that issue is now covered under renumbered Policy 84.1.1. The amendments added to Policy 84.1.4 the following provision: Land uses in uplands will be regulated through the implementation of the Land Development Code to avoid degrading the values and functions of adjoining and nearby wetlands. New Policies 84.1.2 and 84.1.4 in effect defer performance standards covering development in wetlands to the state and water management district permitting processes. The Lee amendments in part are an attempt to avoid duplicating what state agencies accomplish through their permitting programs. The evidence is that the state and water management district permitting processes include newly adopted Environmental Resource Permit (ERP) rules. These rules consider the type, value, function, size, condition and location of wetlands in determining how to protect them. The ERP rules also require proposed development to avoid or eliminate wetland impacts or, if not possible, to minimize and mitigate for them. The ERP rules also require consideration of the cumulative and long-term adverse impacts of development on wetlands in a comprehensive manner within the same water basin. The DEP and the Southwest Florida Water Management District also have adopted supplemental ERP rules covering only the jurisdiction of that water management district, which includes Lee County. By including a requirement that every state environmental permit shall be incorporated into county permits and that violations of a state permit also are violations of the county permit, the Lee Plan commits the County to assist the State in enforcing environmental permits in Lee County. Through this new emphasis on compliance and enforcement, Lee County will be providing valuable assistance to state environmental protection. Lee County's efforts will assist those agencies by devoting staff to compliance and enforcement efforts. Prior to the EAR-based amendments, the County had two wetland land use categories under the Lee Plan. These were described as the Resource Protection Areas (RPA) and Transition Zones (TZ). Guidelines and standards for permitted uses and development in the RPA and TZ were found in the policies under Objective 84.1 and 84.2, respectively. As a part of the EAR-based amendments, the County replaced the RPA and TZ categories with a single Wetlands category. This new Wetlands category includes all lands that are identified as wetlands under the statewide definition using the state delineation methodology. The County's definition of "wetlands" in the plan amendments covers more area than the areas previously known as "resource protection" and "transition zones." To that extent, the present amendments to the Lee Plan give greater protection to wetlands than the previous version of the Lee Plan. The Lee Plan, as amended, also contains other GOP's. Taken together, the GOP's ensure the protection of wetlands and their natural functions. Reservation of Future Road Right-of-Way. As a part of the EAR-based amendments, the County has deleted or amended certain policies in the Traffic Circulation Element of the Lee Plan regarding the acquisition and preservation of rights-of-way. Deleted Policy 25.1.3 provided that the County would attempt to reserve adequate rights-of-way for state and county roads consistent with state and county plans. The County also deleted Policy 21.1.7, which addressed the possibility of acquiring future rights-of-way through required dedications of land. Policy 21.1.7 provided: The previous policy encouraging the voluntary dedication of land for future right of way needs shall not be construed so as to prohibit the adoption of regulations requiring such dedication. However, any such regulations must provide for a rational nexus between the amount of land for which dedication is required and the impact of the development in question, and must also provide that such dedication, when combined with other means which may be used to offset the impact of development (such as, for example, the imposition of impact fees), does not exceed the total impact of the develop- ment in question upon the county's transportation network. The "previous policy encouraging the voluntary dedication of land for future right of way needs," referenced in Policy 21.1.7, above, was Policy 21.1.6, which has been renumbered 21.1.5. As modified, that policy provides: In order to acquire rights-of-way and complete the construction of all roads designated on the Traffic Circulation Plan Map, voluntary dedications of land and construction of road segments and inter- sections by developers shall be encouraged through relevant provisions in the development regulations and other ordinances as described below: Voluntary dedication of rights-of-way necessary for improvements shown on the Traffic Circulation Plan Map shall be encouraged at the time local development orders are granted. In cases where there are missing segments in the traffic circulation system, developers shall be encouraged to also construct that portion of the thoroughfare that lies within or abuts the development, with appropriate credits granted towards impact fees for roads. However, site-related improvements (see glossary) are not eligible for credits towards impact fees. Policy 21.1.7 provided policy guidance for LDRs in establishing required dedication of future rights-of-way as a means of acquisition, if the County chose to use that measure. Policy 21.1.6 (renumbered 21.1.5) provides policy guidance for LDRs in establishing voluntary dedication of future rights- of-way as another means of acquisition. By deleting Policy 21.1.7, the Lee Plan, as amended, is left with a policy that establishes only the voluntary dedication measure as a means towards acquiring future rights-of-way to facilitate the construction of roads designated on the Traffic Circulation Plan Map of the Lee Plan. The County has made these changes because legally it appears that reservation of future right-of-way may no longer be a viable option after the decision in Joint Ventures, Inc., v. Dept. of Transportation, 563 So. 2d 622 (Fla. 1990). The County's plan does more than just encourage voluntary dedication of rights-of-way. There are numerous policies in the Lee Plan that, taken together, adequately address the acquisition and preservation of rights-of-way. The following policies relate and achieve right-of-way protection: Policy 1.3, 1.6, 4.1.1, 4.1.2, 6.1.5, 16.3.5, 21.1.5, Objective 21.2, Policies 21.2.1, 21.2.3, 21.2.5, 21.2.6, 21.2.7, Policy 23.1.2, 23.1.4, 23.2.3, Policy 25.1.1, and 25.1.3. Under these policies, all new projects receive a review for voluntary dedication as against the Lee County official trafficways map and the facility need identified for the planning horizon of the future traffic circulation element and map. In addition, all new developments are required to mitigate off-site impacts through a payment of impact fees. They are also required to address and mitigate site-related impacts through the provision of site-related improvements at the developer's expense. Payment of impact fees and additional revenues generated through mitigation of site-related impacts, both generate revenues for the capital improvements programming process for purchase of rights-of-way. Accomplishing necessary site-related improvements pursuant to the Lee County program also frequently results in County acquisition of rights-of-way at the developer's expense. Mitigation of site-related impacts, as well as payment of proportional share and impact fees, are generally accomplished through Policy 1.8.3, Subsection 1, Policy 2.3.2, Objective 3.1, Policy 3.1.3, Policy 7.1.2, Policy 14.3.2, Objective 22.1, 23.1, and the policies thereunder, Policy 23.1.1, 23.1.3-.7, 23.2.6, Objective 24.2, Policy 25.1.2, Objective 28.2, and Policy 70.1.1, Subsection A-7. The County's primary method of acquisition of rights-of-way is through the Capital Improvements Element. The Capital Improvements Element does include projected costs to purchase needed rights-of-way. The Lee County Capital Improvements Program is accomplished through Goal 70 of the Lee Plan, which expressly includes acquisition of rights-of-way. Objective 77.3 - Wildlife. Before the EAR-based changes, Objective 77.3 of the Lee Plan was to: "Maintain and enhance the current complement of fish and wildlife diversity and distribution within Lee County for the benefit of a balanced ecological system . . .." In pertinent part, the EAR-based amendment deleted the phrase "current complement of." The change does not alter the meaning of the objective. The concept of a baseline expressed by the deleted phrase also is inherent in the words "[m]aintain and enhance" and remains in the amended objective. Policy 77.11.5 - Endangered and Threatened Species. The EAR-based amendments deleted Policy 77.11.5, which stated: Important black bear and Florida panther use areas shall be identified. Corridors for public acquisition purposes shall be identified within these use areas. The corridor boundaries shall include wetlands, upland buffers, and nearby vegetative communities which are particularly beneficial to the Florida panther and black bear (such as high palmetto and oak hammocks). Data and analysis supports the deletion of the first two sentences. The use areas and public acquisition corridors have been identified. To reflect the new data and analysis, Policies 77.11.1 and 77.11.2 also were amended to provide for updating of data on sitings and habitat for these species and to encourage state land acquisition programs. The last sentence of former Policy 77.11.5 has been transferred and added verbatim to Policy 77.11.2. Related Policy 77.11.4 was also amended to reflect new data and analysis and to provide that, instead of just encouraging the acquisition of the Flint Pen Strand, the County shall continue an acquisition that is in progress. The Adoption Ordinance. As mentioned in connection with the Zemel amendment, Section 10 of the Lee County Ordinance 94-30, which adopted the plan amendments in issue in this case, purported to defer, until after the conclusion of these proceedings, the decision as to which adopted plan amendments would become effective. All of the parties now agree that the attempted deferral of this decision was "ultra vires." All of the parties except for the Zemels agree that, under Section 8 of the ordinance, the "ultra vires" part of the adopting ordinance is severable from the rest of the ordinance, which remains valid. The Zemels take the positions (1) that the state circuit courts have exclusive jurisdiction to determine whether the remainder of the ordinance is valid and (2) that the remainder of the ordinance is invalid. Section 8 of Ordinance 94-30 provided: [I]t is the intention of the Board of County Commissioners . . . to confer the whole or any part of the powers herein provided. If any of the provisions of this ordinance shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any remaining provision of this ordinance. It is hereby declared to be the legislative intent of the Board of County Commissioners that this ordinance would have been adopted had such unconstitutional provisions not been included therein. The evidence was that, notwithstanding Section 8 of Ordinance 94-30, one purpose of Section 10 of the ordinance was to insure that intended packages of amendments would remain together and either become effective together or not at all. As discussed in connection with the Zemel amendment, the evidence was that one such package consisted of the amendments to the FLUM and to FLUE Policy 1.4.4, changing the land use designation of certain property to "Open Lands," and the amendments which delete the FLUM 2010 Overlay. There also was some less compelling evidence that amendments creating the Commercial Site Location Standards Map, FLUM 16, were intended to remain together with the amendments which delete the FLUM 2010 Overlay. No other examples of similar "packages" of plan amendments was shown by the evidence or argued by any party. RGMC's Standing. The Responsible Growth Management Coalition, Inc. (RGMC), was formed in 1988 to insure compliance with Chapter 163, Florida Statutes, and F.A.C. Rule Chapter 9J-5 and to conserve resources. RGMC has offices in Lee County and conducts educational programs in Lee. In addition, at the time of the hearing, RGMC had 157 members residing throughout Lee County, most or all of whom own property in Lee County. RGMC participated in the process leading to the adoption of the Lee plan amendments in issue in this case and submitted oral or written comments, recommendations or suggestions between the transmittal hearing and adoption of the plan amendments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order finding that the Lee Plan amendments are not in compliance and requiring as remedial action: That the FLUE's mixed land use categories be amended to include percentage distribution or other objective measurements of the distribution among allowed uses, whether by use of an appropriate 2020 Overlay or by other appropriate means. That a sector plan be adopted for Lehigh Acres, including appropriate plans for provision of infrastructure, to create more balanced development in Lehigh and, to the extent possible, to direct future population growth to Lehigh and away from CHHA, DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. Such a sector plan could include minimum densities and target densities to support mass transit along transit corridors in Lehigh. That consideration be given to increasing densities in central urban areas and along transit corridors while at the same time reducing densities or adopting other plan provisions, such as the prohibition of certain kinds of development, to afford more protection to CHHA, DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. One example would be the prohibition, or staging, of non-farm development in some or all rural areas. That, in accordance with Policy 75.1.4, undeveloped areas within CHHA be considered for reduced density categories (or assignment of minimum allowable densities where density ranges are permitted) in order to limit the future population exposed to coastal flooding. That the data and analysis supporting the remedial amendments account for units approved but not built and include both a population accommodation analysis based on maximum densities and an explanation of how the GOP's in the remedial amendments justify the resulting allocation ratio. That the remedial amendments include data and analysis of the impact of the resulting plan, as amended, on hurricane evacuation and clearance times and shelter planning, especially if, as part of remedial amendments, the 2010 Overlay is removed (or replaced). That the remedial amendments be based on data and analysis as to the need for commercial and industrial land, including the Alico amendment property. That the data and analysis extrapolate solid waste projections to 2020. That the sub-elements of the Community Facilities and Services Element (and other parts of the plan, as appropriate) be consistent with and based on data and analysis of future population predictions in light of any remedial amendments to the FLUE and FLUM. RECOMMENDED this 31st day of January, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 31st day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0098GM To comply with the requirements of Section 120.59(2), Fla. Stat. (1995), as construed by the decision in Harbor Island Beach Club, Ltd., v. Dept. of Natural Resources, 476 So. 2d 1350 (Fla. 1st DCA 1985), the following rulings are made on the parties' proposed findings of fact: DCA's Proposed Findings of Fact. 1-17. Accepted. 18. There is a legal issue whether Ordinance 94-30 was adopted validly; otherwise, accepted. 19.-28. Accepted. Conclusion of law. Rejected in part: plan includes "guides" (but no "objective measurements"); and Commercial Site Location Standards Map 16 implies that other uses are required elsewhere in the districts where these sites are located. Otherwise, accepted. Last sentence, rejected. (Assumptions are in part "based on" the GOP's, but they also assume less development than permitted by the GOP's.) Otherwise, accepted. Accepted. Characterization "conservative" rejected as argument; otherwise, accepted. 34.-35. Accepted. 36. Accepted as being theoretically possible, but not likely to happen. 37.-38. Accepted. 39. Accepted as approximation of maximum theoretical residential capacity. 40.-46. Accepted. (However, as to 45 and 46, these numbers do not take into account industrial land needed to serve municipal populations that probably cannot or will not be supplied within the cities themselves.) First sentence, conclusion of law. Second sentence, rejected as not proven by a preponderance of the evidence. (The plan is "based on" the population projections, but allocates more land than needed to accommodate the population.) First sentence, conclusion of law; second sentence, accepted. 49.-50. Conclusions of law. 51.-52. First sentence, conclusion of law; rest, accepted. 53. First sentence, conclusion of law; second and third sentences, rejected as not proven by a preponderance of the evidence; last sentence, accepted. 54.-55. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. 56. First sentence, conclusion of law; rest, accepted. 57.-58. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; second, accepted; third, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; second, rejected as not proven by a preponderance of the evidence; third, accepted (but does not prove non- compliance with the state plan.) First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. 63.-64. Accepted. As to b.1. not timely raised; accepted as to b.2. (but easily extrapolated five more years to 2020); otherwise, rejected as not proven beyond fair debate. First two sentences of a. and b., accepted; otherwise, rejected as not proven beyond fair debate. (As to b., the discrepancies are not significant enough to create "internal inconsistency.") First sentence, rejected as not proven beyond fair debate; rest, accepted. Rejected as not proven by a preponderance of the evidence that deletion of the Overlay "accelerated development." (Rather, it allows--and, under certain conditions, would result it--development of more acreage sooner.) First sentence, accepted; rest, conclusion of law. First sentence, accepted; second, rejected as not proven beyond fair debate. First and third sentences, accepted; rest, rejected as not proven by a preponderance of evidence. (The population projections are easonably accurate and certainly more realistic than the "maximum theoretical" populations used in the DCA's residential allocation analysis.) Last sentence, rejected as not proven by a preponderance of evidence. (The RWSMP population projections are reasonably close to the Figure 14 projections. See also 66., above.) First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. See also 71., above. 74.-77. Accepted. 78. 2850 rejected as somewhat high (does not take into account some acreage removed from AC); otherwise, accepted. 79.-81. Accepted. 82.-83. Accepted. However, last sentences assume: (1) accurate inventory of developed acres in Orlando comparable to the land uses in AC under the Lee Plan; (2) 2850 acres of AC; and (3) developability of all AC acreage--including wetlands--for AC use. Those assumptions are not, or may not be, reasonable. 84. Rejected as not proven by a preponderance of evidence. See 82.-83. 85.-87. Accepted. However, as to 87., it is noted that the words "area," "surrounded by," and "nearby" are imprecise. Accepted; however, the degree of the sandstone aquifer's "susceptibility" to impacts depends on many factors. Last sentence, rejected as not proven by a preponderance of evidence that existing sources cannot produce any more; however, proven that new sources will be required, and otherwise accepted. Accepted. Last sentence, rejected as not proven by a preponderance of evidence that groundwater moves "to" the existing and planned wellfields. Otherwise, accepted. First sentence, rejected as not proven by a preponderance of evidence; rest, accepted. Fourth sentence, rejected as not proven by a preponderance of evidence; rest, accepted. First sentence, accepted; second, rejected as not proven by a preponderance of evidence. Accepted. Rejected as not proven by a preponderance of evidence that the circuit court judgment was based entirely on new data and analysis; otherwise, accepted. 97.-98. Accepted. Characterization of methodology as "flawed" rejected as not proven by a preponderance of evidence. (It depends on the use being made of the results of the methodology.) Otherwise, accepted. Accepted. Last sentence, legal conclusion. (Legally, it appears that reservation of future right-of-way may no longer be a viable option, and the County's amendments presume that it is not.) Rest, accepted. 102.-105. Accepted. 106. Rejected as not proven by a preponderance of evidence that voluntary dedication is not "effective" as one of several policies. Otherwise, accepted. 107.-108. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. Accepted. Second and third sentences, rejected as not proven by a preponderance of evidence that the state regulations are supposed to serve as "guidelines" or "guidance" for LDR's; rather, they are to serve in the place of duplicative County LDR's on the subject. Otherwise, accepted. Accepted. (However, appropriate comprehensive planning for wetlands occurs in other parts of the plan; the state regulations take the place of performance standards that would be duplicated in plan provisions and LDR's.) Last sentence, rejected as not proven by a preponderance of evidence and as conclusion of law. Rest, accepted. (However, state regulations apply to some uplands that adjoin or are near to wetlands.) First sentence, accepted. (They don't guide the establishment of design and performance standard kinds of LDR's for any development in any wetlands; the state regulations take the place of design and performance standards that would be duplicated in plan provisions and LDR's.) Second sentence, rejected as not proven by a preponderance of evidence (that they are the "core wetland policies in the plan.") Third sentence, rejected as not proven by a preponderance of evidence and as conclusion of law. RGMC's Proposed Findings of Fact. 1.-8. Accepted. 9. Conclusion of law. 10.-15. Subordinate; conclusion of law; argument. 16. Accepted but subordinate. 17.-18. Rejected as not supported by record evidence. 19.-35. Accepted. 35(a). Conclusion of law. 36.-40. Accepted. 40(a). Conclusion of law. 41. Accepted. 41(a). Conclusion of law. 42.-44. Accepted. Accepted; however, the option to consider assignment of the minimum of a range of densities is in parentheses after the primary option to consider reducing densities. Largely argument. The objective and policy is "triggered" by any plan amendment, before and after the change from "A Zone" to "CHHA." See 47. Accepted. 47(a). Rejected as not proven beyond fair debate. (It is a question of internal consistency.) Accepted. 48(a). Argument and recommended remediation. Accepted. 50.-59. County motion to strike granted. (Issue not raised timely.) 60.-62. Accepted. See rulings on DCA proposed findings. County motion to strike granted. (Issue not raised timely.) 65.-66. Rejected as not proven by a preponderance of evidence. (The population projections are reasonably accurate and certainly more realistic than the "maximum theoretical" populations used in the DCA's residential allocation analysis.) 67.-73(a) County motion to strike granted. (Issue not raised timely.) See rulings on DCA proposed findings. Accepted. Rejected as not proven by a preponderance of evidence. 77.-78. 2800 rejected as somewhat high (does not take into account some acreage removed from AC); 1000 rejected as 400 low; otherwise, accepted. 79.-81(a). Accepted. Rejected as not proven by a preponderance of evidence. 82(a). Accepted. Conclusion of law. Rejected as not proven by a preponderance of evidence. Accepted. Accepted but "between" is imprecise. Accepted, but not likely. Accepted that two are mutually exclusive; otherwise, rejected as not proven by a preponderance of evidence. Rejected as not proven by a preponderance of evidence. Rejected as not proven beyond fair debate. Accepted. Rejected as not proven by a preponderance of evidence that the lands are "adjacent"; otherwise, accepted. 93.-94. Accepted. Rejected as not proven beyond fair debate. Rejected as not proven by a preponderance of evidence. Accepted. Rejected as not proven by a preponderance of evidence. See rulings on DCA proposed findings. Rejected as not proven by a preponderance of evidence that it is "the reasonable professionally acceptable methodology." Rejected as unclear and as not proven by a preponderance of evidence. (Whether it is appropriate to apply a safety margin factor just to projected new growth can depend on the safety margin factor used and how far out the projection.) Rejected as unclear and as not proven by a preponderance of evidence. Rejected as being hypothetical argument. (Also, the ratios do not convert to percentages, i.e., 25:1 does not convert to a safety margin factor of 25 percent.) 104.-111(a). Rejected as not proven by a preponderance of evidence that "overallocations" occur in the earlier years of the planning timeframe; the relevant inquiry relates to the planning horizon. Also, as to 111., the reference should be to the year 2020. (Also, again the ratios do not convert to percentages.) Otherwise, accepted. 112.-118. Accepted as being paraphrased from part of the Sheridan Final Order. 119.-128. Accepted as being the adjustments to Figure 14B to yield unrealistic "maximum theoretical" capacity. 129.-130. Conclusions of law. 131. Accepted. 132.-133. Rejected as not proven by a preponderance of evidence. (The plan does not "propose development"; its projections on which the County bases its facilities and services are more realistic that the "maximum theoretical" capacity projections.) Also, these specific issues were not timely raised, and County motion to strike granted. 134. Accepted. 135.-140. Descriptions of what the various FLUM's show and what development has occurred over the years, accepted as reasonably accurate. Rejected as not proven by a preponderance of evidence that there were either official or unofficial "urban expansion lines." (It was not clear from the evidence whether the so-called "Proposed EAR Urban Boundary" shown on Lee Exhibit 53 was either an official or an unofficial "urban expansion line," and there was no other evidence of any "urban expansion lines.") Also, rejected as not proven by a preponderance of evidence that there was a "failure to maintain" them, or that the Southwest International Airport or the Westinghouse Gateway DRI "breached" the alleged "1988 urban expansion line." (The Westinghouse Gateway DRI was vested prior to 1984, and the regional airport development appears on FLUM's prior to 1988.) Also, development that occurred in earlier years is not particularly probative on the issues in this case (in particular, the amendment eliminating the Overlay). 141.-142. Accepted. 142(a). Rejected as not proven by a preponderance of evidence. Also, the specific issue of failure to establish an "urban expansion line" is not raised by amendments at issue in this case (in particular, the elimination of the Overlay), and was not timely raised by any party. 143.-146. Densities in land use categories, accepted as reasonably accurate. The rest is rejected as not proven by a preponderance of evidence. The plan provisions (or lack of them) in question have been determined to be in compliance. Primarily, with deletion of the Overlay, the amendments at issue open up for development in accordance with these plan provisions more acreage of non-urban land uses prior to 2010. They also do not extend the Overlay to 2020. 147.-150. Accepted. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, failure of the plan to include objective measures for distribution of uses in mixed land use districts contributes to the overallocation without the Overlay. 150(a). Rejected as not proven by a preponderance of evidence; also, conclusion of law. Conclusion of law. In part, accepted; in part conclusion of law. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, failure of the plan to include objective measures for distribution of uses in mixed land use districts contributes to the overallocation without the Overlay. Rejected as not proven by a preponderance of evidence; also, conclusion of law. 154.-160. Accepted. Rejected as not proven by a preponderance of evidence. (It remains to be seen how effective they will be in the long term.) Accepted. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, with deletion of the Overlay, the amendments at issue open up for development in accordance with these plan provisions more acreage in potential wildlife habitat and corridor areas prior to 2010. (They also do not extend the Overlay to 2020.) See rulings on DCA proposed findings. 164.-168. Rejected because issues not raised timely. 169. Rejected as not proven by a preponderance of evidence and as conclusion of law. 170.-174. County motion to strike granted. 175.-179. Accepted. 180.-182. Conclusions of law. 183.-184. Rejected as not proven beyond fair debate. 185. Accepted. 186.-188. Rejected as not proven by a preponderance of evidence. 189. First clause, rejected (see 186.-188.); second clause, accepted. 190.-191. Rejected as not proven by a preponderance of evidence. 192.-193. Rejected as not proven beyond fair debate. 194. Conclusion of law. 195.-196. Rejected as not proven by a preponderance of evidence. 197.-198. Except for typographical errors, accepted. (However, the last sentence of former Policy 77.11.5 was transferred verbatim to amended Policy 77.11.2.) Rejected as not proven by a preponderance of evidence to be the entire justification. (Also justified by updated data and analysis--namely, that the habitats have been identified and mapped--and by amended Policies 77.11.1 and 77.11.2, which respond to the new data and analysis.) Argument. 201.-204. Cumulative. (See 154.-157.) 205.-206. Rejected as not proven by a preponderance of evidence. 207.-208. Accepted. Accepted (although not demonstrated by Lee Exhibit 49). Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as not clear from the evidence that the Zemel property is connected to and part of the Cecil Webb Wildlife Management Area. Otherwise, accepted. 213.-216. Accepted. 217.-218. Not an issue; but, if an issue, rejected as not proven by a preponderance of evidence (which is not to say that it was proven that the land should be designated for higher densities, or that 1 unit per 5 acres or lower densities are not suitable.) 219.-222. Not an issue; but, if an issue, rejected as not proven beyond fair debate (which, again, is not to say that it was proven that the land should be designated for higher densities, or that 1 unit per 5 acres or lower densities are not suitable.) 223. Not an issue; but, if an issue, rejected. See 217.-222. Zemels' Proposed Findings of Fact. 1. Accepted; however, relatively little of the Zemel property abuts either U.S. 41 or Burnt Store Road. 2-10. Accepted. Last clause rejected as not proven beyond fair debate; another option would be to amend the definition. Otherwise, accepted. Last clause, rejected as not proven by a preponderance of evidence that they are not "sparsely developed." Otherwise, accepted. 13.-15. Accepted. First sentence, rejected as not proven by a preponderance of evidence; otherwise, accepted. First sentence, rejected as not proven by a preponderance of evidence as to the south; otherwise, accepted but irrelevant to the application of the definition. Accepted; however, not proven by a preponderance of evidence that the Zemel property is not north of "sparsely developed areas." (Emphasis added.) Rejected as not proven by a preponderance of evidence. Accepted. First sentence, rejected as not proven by a preponderance of evidence. Rest, accepted in large part and rejected in part as not proven by a preponderance of evidence. Clearly, at least a good portion of the Zemel property is "extremely remote" from all existing public services. Some portions of the Zemel property are not "extremely remote" from some public services, but not proven by a preponderance of evidence that at least some public services are not "extremely remote" from all portions of the Zemel property. Also, in addition to existing public services, c) and e) also refer to future public services. Rejected as not proven by a preponderance of evidence that no agricultural activities have been profitable (only that row crop farming has not); otherwise, accepted. Last sentence, not proven by a preponderance of evidence; otherwise, accepted. Rejected as not proven by a preponderance of evidence. Rejected as not proven by a preponderance of evidence (as to second and third sentences, because of the existence of the Open Lands category.) Accepted (although there also are other data and analysis in the record). First sentence, rejected as not proven by a preponderance of evidence. (Not all of the statements are "conclusory".) Second, accepted. Third, rejected; see 21., above. 28.-29. Accepted. (However, as to 29., it refers to existing access.) First sentence, accepted. A. - rejected as not proven by a preponderance of evidence that the analysis "fails to recognize" the roads in northern Cape Coral (although it clearly does not mention them); otherwise, accepted. B. - rejected as not proven by a preponderance of evidence that the analysis "appears to ignore" the water line along U.S. 41 (although it clearly does not mention it); otherwise, accepted. C. - accepted; however, the "proximity" is to a point on the periphery of the property. Last sentence, rejected as not proven by a preponderance of evidence. Accepted. Second sentence, rejected as not proven by a preponderance of evidence except using the County's methodology. Otherwise, accepted. 33.-34. Accepted. Second sentence, rejected as not proven by a preponderance of evidence. (The County in effect "borrowed" the DCA's data and analysis.) Rest, accepted. Accepted, assuming the County's methodology; however, there also are other concerns. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. As to the second, there is rural land to the northwest; as to the third, there also is resource protection land in Charlotte County to the north, and the "enclave" is large; as to the fourth, no I-75 boundary would appear to apply to Township 43 even if it might appear to apply to the south. Rejected as not proven by a preponderance of evidence. (The analysis compares the costs and difficulty in Yucca Pen to Lehigh and Cape Coral; in terms of such a comparison, the differences are significant.) 40.-45. Accepted. County's Proposed Findings of Fact. 1.-2. Accepted. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence; third, accepted (assuming "actual bona fide business" means a for-profit commercial enterprise.) Accepted. Rejected as contrary to the greater weight of the evidence that the DCA "agreed with and relied on" the County's analysis. (The DCA utilized the analysis for purposes of its objection.) Otherwise, accepted. Accepted. First sentence, accepted. Second, rejected as contrary to the greater weight of the evidence that the determination was "on a largely subjective basis" (although some determinations necessarily were at least partly subjective); otherwise, accepted. Accepted. Rejected as contrary to the greater weight of the evidence that the Overlay was designed "without policy considerations" or that historic growth trends were "simply extrapolated." (The policy considerations already in the plan were utilized, and an effort was made to predict growth in light of those policy considerations. It is true, however, that the Overlay was not designed to further direct growth patterns within the planning districts and subdistricts.) Accepted (but not particularly probative). 11.-14. Accepted. Rejected in part as contrary to the greater weight of the evidence to the extent that it implies that the impact of the plan was not taken into consideration in predicting future population. See 9., above. Otherwise, accepted. Firsts sentence, accepted. As to second and third, not clear from the evidence what if anything was submitted in the way of data and analysis for the remedial amendments. They were not introduced in evidence or referred to by any party. As to the last sentence, it is not clear from the evidence exactly how the 2.11 factor was derived or whether it took into account the 2010 population accommodation for Lehigh (282,000 people in this analysis). (T. 1267-1269.) If the 507,000 units of accommodation did not include Lehigh, the total accommodation of 1.06 million also could not have included Lehigh. Accepted. First three sentences, argument. Rest, accepted. 19.-20. Accepted. 21. Rejected as unclear what "that allocation" refers to. (Accepted if it means "up to 125 percent"; rejected as contrary to the greater weight of the evidence if it means "200 percent.") 22.-23. Accepted. First sentence, accepted; second, conclusion of law. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. Rejected as contrary to the greater weight of the evidence. Subordinate. Rejected as contrary to the greater weight of the evidence. (In addition, a more meaningful comparison would be between the adopted EAR 2020 plan without a 2010 Overlay and a 2020 plan with an overlay extending the 2010 Overlay out another ten years.) Last sentence, rejected as contrary to the greater weight of the evidence. Rest, accepted (as accurate recitation of testimony) but subordinate to facts contrary to those found. 30.-32. Accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (As to first sentence, see Sheridan Final Order.) Accepted. First and last sentences, accepted. Rest, rejected as contrary to the greater weight of the evidence. Such an approach would direct population to Lehigh, which might be the best thing to do. (At this point in time, development of Lehigh under a good Sector Plan might be able to change what was classic urban sprawl under past conditions into well-planned growth under present and future conditions.) It might also direct population to other, non- urban areas if densities were not low enough in them. Finally, Nelson suggested other ways of bring the plan into compliance without the Overlay. 38.-42. Accepted. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence. The County did not seek to "match the available land to meet that growth"; rather, it checked to see if what was on the FLUM would "accommodate" (i.e., hold) the population projected for 2020. Last sentence, rejected in that RGMC challenged the opinion in its response to this proposed finding; otherwise, accepted. Rejected that the County "cannot alter the future development" of Lehigh or that Lehigh is "beyond the reach of" the comprehensive plan; otherwise, accepted. The 199 acres is part of the 685 acre total. Otherwise, generally accepted. However, significant additional growth can be expected in coastal areas, and there is rural land both within and outside the so-called "I-75, U.S. 41 corridor"; presumably, the existence of this land is the reason the finding is couched in the terms: "the remaining area . . . is largely . . . along the I-75, U.S. 41 corridor"; and "all future growth . . . will predominantly occur." First and third sentences, conclusion of law; second, accepted. Conclusion of law. First sentence, accepted but subordinate; also, the rule citation is incorrect; in addition, they testified to the effect of removing the Overlay. Second sentence, conclusion of law. Accepted. (The effect of the Overlay is in the extent of the indicators that exist.) Accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted; third, conclusion of law; fourth, accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. First sentence, accepted; second, conclusion of law. First sentence, accepted. Second, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that it is "clear"; also, conclusion of law. 58.-60. Accepted. Rejected as contrary to the greater weight of the evidence. (The same conditions exist without the Overlay.) Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. First sentence, rejected; second, accepted. Rejected as contrary to the greater weight of the evidence that the Overlay did not have any "true policy bias or consideration built into it"; otherwise, accepted. Accepted. (However, the same conditions exist without the Overlay.) 68.-71. Accepted. Rejected as contrary to the greater weight of the evidence that "removing Cape Coral . . . reduces the FLUM capacity"; rather, it represents a change in the methodology of evaluating the FLUM capacity. Otherwise, accepted. Accepted. 74.-78. Accepted. However, it appears that the County's treatment of Lehigh essentially was a device to enable it to have the projected population in the year 2020 treated as if it were the capacity of Lehigh in the year 2020. 79.-81. First sentence of 79, unclear; rest, accepted. However, only certain retail commercial are restricted to the locations on Map 16; others can go either there or elsewhere. 82.-85. Conclusion of law. First sentence, conclusion of law; rest, accepted. Accepted. Rejected as contrary to the greater weight of the evidence that the ELUM "represents the growth trends" (rather, it shows what is there now) or that, except for Lehigh, growth only "is occurring in the north/south core." Otherwise, accepted. Accepted. First and last sentences, rejected as contrary to the greater weight of the evidence. ("Barrier" is too strong; "obstacle" or "hindrance" would be accepted.) Otherwise, accepted. 91.-95. Generally, accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence and as conclusion of law that they are "objective measures" and "responsive to . . . 5(c)"; otherwise, accepted. Accepted. First sentence, accepted; second, accepted (although some higher, urban densities are in coastal areas, and there remains some rural land in the so-called "north/south core"); third, rejected as contrary to the greater weight of the evidence that a "large impact" is "clear"; fourth, rejected as contrary to the greater weight of the evidence that the "segmentation" is absolute but otherwise accepted. Except for Lehigh, generally accepted. (What is missing are "objective measures.") Generally, accepted. First sentence, conclusion of law; second, rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence that it is "nearly identical." Third sentence, rejected as contrary to the greater weight of the evidence that it necessarily is not excessive. The evidence was that it is not necessarily excessive, but it could be depending on many factors, including whether it was calculated based on total capacity on the planning horizon or incremental growth during the planning timeframe, and the length of the planning horizon. Otherwise, accepted. First two sentences, accepted; last two, rejected as contrary to the greater weight of the evidence. 107.-108. Accepted. 109. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. 110.-117. Rejected as contrary to the greater weight of the evidence. The effect of removing the Overlay is to allow more development sooner throughout the County. The effect of the increased development would depend on how it occurs. As to 116 and 117, one purpose of the Overlay was to require a mix of uses in mixed land use districts. First sentence, rejected. See 110-117, above. Rest, accepted. Cumulative. Last sentence, subordinate argument; except for apparent typographical error in third sentence, rest accepted. Last sentence, rejected as unclear from the evidence why there has been no agricultural use; otherwise, accepted. Accepted. Last sentence, rejected as contrary to the greater weight of the evidence. ("Significance" depends on other factors as well, including the amount of acreage in other mixed land use categories that allow light industrial.) Assuming that the "127 additional acres" refers to uplands, the rest is accepted. 124.-125. Rejected as contrary to the greater weight of the evidence and, in part, conclusion of law. There was no evidence of any serious risk of a taking. If these were legitimate reasons to redesignate the Alico property AC, it would be questionable if any DRGR would survive. First sentence, accepted (assuming the County's efforts are otherwise "in compliance"; second, subordinate argument; third, cumulative. Accepted. (However, the County's analysis does not include acreage in other mixed land use categories that allow light industrial.) First four sentences, accepted but irrelevant; penultimate, rejected as contrary to the greater weight of the evidence that it is "safe to assume"; last sentence, accepted. First two sentences, accepted; third, rejected as contrary to the greater weight of the evidence that mining would "permanently preempt" commercial use, but accepted that subsequent commercial use would be much less likely; fourth sentence, accepted (except for typos); last sentence, accepted. Second sentence, rejected as not clear that it "won't be available," but accepted that it may not, depending on when it is "needed." Rest, accepted. First sentence, subordinate argument; second, rejected as contrary to the greater weight of the evidence that it is "clear" but accepted that it probably "will not pose a significant threat"; third and fourth, accepted; fifth, rejected as contrary to the greater weight of the evidence that there is no recharge, but accepted that recharge is not better than average; rest, accepted. Accepted (with the understanding that the last sentence refers to surface water runoff). First sentence, accepted; second and third, rejected as contrary to the greater weight of the evidence that the Gulf Utilities-San Carlos wellfield is the only wellfield in the water table aquifer (otherwise, the third sentence is accepted). 134.-136. Accepted. Accepted. Last sentence, rejected as contrary to the greater weight of the evidence. (There also were other internal consistency issues concerning the date.) Otherwise, accepted. Rejected as contrary to the greater weight of the evidence. 140.-141. Accepted. 142. Irrelevant; issue not timely raised. 143.-144. Accepted. First sentence, accepted (in that DCA and RGMC did not prove internal inconsistency beyond fair debate); second, third and fourth sentences, accepted (but do not rule out the possibility of impacts from removal of the Overlay); rest, rejected as contrary to the greater weight of the evidence. Accepted (but do not rule out the possibility of impacts from removal of the Overlay). 147.-149. Accepted. First two sentences, argument; third, rejected as contrary to the greater weight of the evidence; last, accepted. First sentence, rejected as contrary to the greater weight of the evidence in that a reduction in densities is not necessarily positive; rest, accepted. 152.-155. Accepted. First sentence, accepted (assuming it refers to the deleted first sentence of former Policy 84.1.2, now 84.1.1); second, rejected as contrary to the greater weight of the evidence since its context requires the opposite interpretation. Accepted. First sentence, rejected as contrary to the greater weight of the evidence that the report "specifically recommends the amendment . . . in the fashion that Lee County has done." Otherwise, accepted. 159.-160. Accepted (159, based on the plan language and Joyce testimony, as well as the Deadman testimony.) First sentence, accepted; second, conclusion of law. Rejected as contrary to the greater weight of the evidence; conclusion of law; subordinate. Accepted; subordinate. Accepted. Rejected as contrary to the greater weight of the evidence that the circuit court judgment was based entirely on new data and analysis; otherwise, accepted. 166.-169. Accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence. (Use of the "allocation ratio" is being determined in this case.) Rejected as contrary to the greater weight of the evidence to the extent that the Sheridan Final Order can be said to be a DCA "publication." Otherwise, accepted. Rejected as contrary to the greater weight of the evidence in that Joint Exhibit 17 gives some indication of how to apply an "allocation ratio"; accepted that Joint Exhibit 17 does not fully explain how to apply the "allocation ratio." Accepted. Rejected as contrary to the greater weight of the evidence to the extent that the Sheridan Final Order constitutes such evidence. Accepted. Rejected as contrary to the greater weight of the evidence. Atlantic Gulf's Proposed Findings of Fact. 1.-3. Accepted. 4. Accepted (but do not rule out the possibility of impacts from removal of the Overlay). 5.-7. Accepted. 8.-10. In part conclusions of law; otherwise, accepted. (The incorporation of the DEP and SWFWMD permitting requirements only replaces former County permitting requirements; other parts of the amended plan's provisions relating to wetlands protection remain in effect.) Alico's Proposed Findings of Fact. 1.-13. Accepted. Rejected as contrary to the greater weight of the evidence in that the phrase "substantial recharge to aquifers most suitable for future wellfield development" may distinguish DRGR-suitable land from other land by the nature of the aquifer it recharges, not by the relative amounts of recharge. However, the suitability of the AC amendment property for DRGR is questionable, and redesignation to AC is not prohibited. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence in that it is in the "area" of "most favorable locations for physical withdrawal of water from those aquifers." However, the suitability of the AC amendment property for DRGR is questionable, and redesignation to AC is not prohibited. 16.-19. Accepted. Accepted (assuming it refers to the DCA submitting); subordinate. Accepted. 22.-24. Subordinate argument and conclusion of law. 25.-34. Accepted. 35.-36. Accepted; subordinate. Last sentence, accepted; rest, subordinate argument and conclusion of law. Accepted (except, in s. and u., it should read "Six Mile Cypress Basin.") Rejected as contrary to the greater weight of the evidence that the list is not exhaustive ; otherwise, accepted. 40.-41. Accepted. Rejected as contrary to the greater weight of the evidence in that Policy 7.1.1 just says applications are to be "reviewed and evaluated as to" these items; it does not say that "negative impacts" must be "avoided." Rejected as contrary to the greater weight of the evidence in that Goal 12 and Standard 12.4 under it are renumbered under the current amendments as Goal 11 and Standard 11.4; otherwise, accepted. Rejected as contrary to the greater weight of the evidence in that former Standard 14.1 has been transferred to Policy 7.1.1. under the current amendments. See 40 and 42, above. Accepted. First sentence, rejected as contrary to the greater weight of the evidence that former designation as DRGR is the only reason why water quality and quantity issues arise; second, cumulative. Cumulative. First two sentences, cumulative; rest, accepted. First two sentences, accepted; rest, cumulative. First sentence, unclear which fact is "in dispute"; rest, accepted. (The AC amendment property probably would not be developed as a producing wellfield.) First sentence, accepted; second, cumulative. First two clauses of first sentence, accepted; rest, conclusion of law. First sentence, cumulative; rest, accepted. First sentence, accepted; second, conclusion of law. 55.-56. Cumulative. 57.-59. Accepted. First two sentences, accepted; rest, cumulative. Accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, third and fourth sentences, accepted; rest, cumulative. First sentence, argument; rest, accepted. Accepted. 65.-66. In part, cumulative; otherwise, accepted. 67.-70. Accepted. First sentence, argument; middle sentences, accepted; penultimate sentence, rejected as contrary to the greater weight of the evidence in that he made no blanket concession, instead conditioning interception on water table levels; last sentence, accepted. First sentence, rejected as contrary to the greater weight of the evidence (that there's no "realistic way" "you" can do it); rest, accepted. 73.-74. Cumulative. Accepted. Cumulative. Accepted; subordinate and unnecessary. Cumulative. Beginning, cumulative; last sentence, subordinate argument. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence in that the influence of additional pumping has not been analyzed; last, accepted. Accepted. First two sentences, conclusion of law; last, accepted. Subordinate argument. First sentence, conclusion of law; second, accepted; third, rejected as contrary to the greater weight of the evidence in that the "performance standards" say to maintain current protection and expand protection "to encompass the entire area." Accepted. (However, it is far from clear that the BMP's referred to in Policy 1.2.2 are the same ones referred to in this proposed finding.) Accepted. 87.-88. Subordinate argument. Cumulative or subordinate argument. Unclear what is meant by "several generations of numbers." Otherwise, cumulative. Cumulative. Accepted but subordinate. Accepted. (However, he also raised the question that the County's analysis did not include acreage in other mixed land use categories that allow light industrial.) 94.-95. Accepted. First sentence, subordinate argument; second, rejected as contrary to the greater weight of the evidence in that they conceded need is not based exclusively on resident and seasonal population, not that it is not based at all on it; third, accepted. First sentence, accepted; rest, subordinate argument. Accepted. Accepted. (Nor was there testimony that there is a need based on population.) Accepted. First sentence, accepted; second, conclusion of law, cumulative, and rejected as contrary to the greater weight of the evidence in that there was evidence of other motivations for providing the information as well. Accepted. (However, the analysis was limited to Orlando, and Nelson's method resulted in no need found.) Subordinate argument; cumulative. Subordinate argument. Accepted. (As to third sentence, neither did any other witness.) 106.-107. Accepted. Last sentence, subordinate argument; penultimate, rejected as contrary to the greater weight of the evidence (or, at least, unclear); rest accepted. Cumulative. 110.-113. Accepted. Cumulative. First sentence, conclusion of law; second, accepted as an excerpt from the dictionary, but argument and conclusion of law that it is the "plain meaning" of the word "need," as used in 9J-5. (Also, citation to Joint Exhibit 11, p. 9, is not understood.) Argument and cumulative. 117.-118. Accepted. 119.-120. Conclusion of law, argument and cumulative. 121. Last sentence, accepted. (It is not clear from the evidence that the designation of the property as "Panther Priority 2" on Lee Exhibit 42, introduced by RGMC, means that the County has identified it as being "in need of conservation.") Rest, conclusion of law, argument and cumulative. 122.-126. Conclusion of law and cumulative. To the extent that accepted proposed findings are not essentially incorporated into the Findings of Fact of this Recommended Order, they were considered to be either subordinate or otherwise unnecessary. COPIES FURNISHED: David Jordan, Esquire Deputy General Counsel Bridgette Ffolkes, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Timothy Jones, Esquire Thomas L. Wright, Esquire Assistant County Attorney Post Office Box 398 Fort Myers, Florida 33902-0398 Thomas W. Reese, Esquire 2951 61st Avenue So. St. Petersburg, Florida 33712 Elizabeth C. Bowman, Esquire Connie C. Durrence, Esquire Hopping Boyd Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Russell P. Schropp, Esquire Henderson, Franklin, Starnes & Holt Post Office Box 280 Fort Myers, Florida 33902 Charles J. Basinait, Esquire Henderson, Franklin, Starnes & Holt Post Office Box 280 Fort Myers, Florida 33902 Kenneth G. Oertel, Esquire Scott Shirley, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Neale Montgomery, Esquire Pavese, Garner, Haverfield, Dalton, Harrison & Jensen Post Office Drawer 1507 Fort Myers, Florida 33902 Steven C. Hartsell, Esquire Pavese, Garner, Haverfield, Dalton, Harrison & Jensen Post Office Drawer 1507 Fort Myers, Florida 33902 Thomas B. Hart, Esquire Humphrey & Knott, P.A. 1625 Hendry Street, Suite 301 Post Office Box 2449 Fort Myers, Florida 33902-2449 Michael J. Ciccarone, Esquire Goldberg, Goldstein, & Buckley, P.A. Post Office Box 2366 Fort Myers, Florida 33902 Greg Smith, Esquire Governor's Legal Office The Capitol - Room 209 Tallahassee, Florida 32399-0001 Barbara Leighty, Clerk Growth Management and Strategic Planning Administration Commission The Capitol - Room 2105 Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether Brevard County's 1999 Comprehensive Plan Amendments B.12, B.13, and B.14 (the Plan Amendments) are "in compliance."
Findings Of Fact General Besides the introduction of the Plan Amendments themselves and a few other documents, Petitioners case-in-chief consisted of examination of Susan Poplin, a Planning Manager for DCA, as an adverse witness, and the testimony of Petitioner, Charles F. Moehle. Most of Poplin's testimony was directly contrary to the positions Petitioners were seeking to prove. Moehle's testimony consisted primarily of conclusions and statements disagreeing with the Plan Amendments. Petitioners provided no data or analysis in support of Moehle's statements and conclusions. Often, Moehle's testimony did not identify specific errors allegedly made by the County. Much of Moehle's presentation was disjointed and difficult to understand. Petitioners also challenged several items which should have been challenged following prior amendments to the County's Plan. For example, Poplin testified that all of the wetland provisions in the challenged Conservation Element B.12 amendments were part of a prior plan amendment and were not changed by the Plan Amendments. See Findings of Fact 7-8, infra. Standing Petitioners' allegations of standing are in paragraph 6 of the Amended Petition for Formal Review: EFFECT ON PETITIONERS' SUBSTANTIAL INTERESTS Petitioner, MODERN owns property in Brevard County, the value of which will be reduced by THE AMENDMENT. Additionally, petitioners MODERN and MOEHLE own property in Brevard County and pay property taxes in Brevard County. Additionally, THE AMENDMENT will cause property tax receipt's of Brevard County to decline because of the reduction in value caused to MODERN'S, MOEHLE'S, and other similarly situated property in the county. Additionally, THE AMENDMENT will cause MODERN'S and MOEHLE'S property taxes to increase due to the additional government employees required to implement and enforce THE AMENDMENT and due to the fact that the property taxes imposed upon property which are not effected [sic] by THE AMENDMENT will necessarily increase in order to offset the loss of property tax revenue from private property which is devalued as a result of THE AMENDMENT. MOEHLE and MODERN have appeared before the Brevard County Board of County Commissioners at public meetings and hearings as well as communicating (verbally and in writing) with their growth Management/Planning & Zoning Departments concerning these matters for several years. In an attempt to prove Petitioners' standing, Moehle testified that he has been a resident of Brevard County since 1958. He also testified that he is President of and owns a substantial interest in Petitioner, Modern, Inc. He testified that both he himself and Modern own real property in Brevard County, and that, as such, both are taxpayers. Moehle also testified that he is "affected by these regulations." He gave no specifics as to how he is affected. He also did not testify that Modern was affected. Before concluding his brief testimony on standing, Moehle asked the ALJ if he had to "ramble on some more" about standing and was asked whether he submitted "oral or written comments, comments, recommendations or objections to the County between the time of the transmittal hearing for the Plan amendment and the adoption of the Plan amendment." Moehle answered: I submitted during the whole period of this - I attended a number of hearings that I knew about during this whole process and I would say that, yes, I did, but not all hearings. Some were questionable - some of my problems or some of the meetings that the action was taken on. So they do have my comments, they've had my comments from me on various issues complete back before and including the Settlement Agreement. The evidence was that all hearings and meetings relating to the "Settlement Agreement" to which Moehle referred in his testimony occurred prior to the transmittal hearing for the Plan Amendments at issue in this case on November 30, 1999. The referenced "Settlement Agreement" was the Stipulated Settlement Agreement entered into in May 1997 to resolve DOAH Case No. 96-2174GM. The County amended its Comprehensive Plan to implement the Stipulated Settlement Agreement on August 24, 1999, by Ordinance 99-48. By Ordinance 99-52, adopted October 7, 1999, the remedial amendments were clarified to include the correct Forested Wetlands Location Map. Ordinance 99-49 and 99-52 both state that the plan amendments adopted by them "shall become effective once the state planning agency issues a final order determining the adopted amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(9), or until the Administration Commission issues a final order determining the amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(10)." The stated "Justification" for Policy 5.2 of the B.12 Plan Amendments at issue in this case was: "The above language was part of a stipulated settlement agreement between DCA and the County. This agreement became effective after the transmittal of the 99B Plan Amendments." Apparently for that reason, the B.12 Plan Amendments at issue in this case, specifically under Objective 5 and Policies 5.1 and 5.2, underlined the wetland provisions previously adopted by Ordinance 99-48. This underlining may give the misimpression that these wetlands provisions were being amended through adoption of Ordinance 2000-33. To the contrary, those amendments already had been adopted, and all hearings on those amendments already had occurred prior to transmittal of the Plan Amendments at issue in this case. Other than testifying that he attended hearings and made submittals "before and including the Settlement Agreement," Moehle did not specify when he attended, or what if anything he said or submitted. Nor did he offer any testimony or evidence that he appeared on behalf of Modern. No minutes or other evidence were produced for the record showing his appearance or comments, recommendations or objections. To the contrary, Petitioners' evidence indicates that Moehle was not one of the individuals who offered public comment at either the transmittal hearing on November 30, 1999; the Land Use Citizens Resource Group meeting on November 4, 1999; or the Local Planning Agency Adoption Meeting on May 15, 2000. Paragraph 6 of the Amended Petition, also alleged: that the value of property owned by Modern will be reduced; that the Plan Amendments will cause property tax receipts to decline because of a reduction in the value caused to Petitioners' property; and 3) that the Plan Amendments will cause Petitioners' property taxes to increase due to additional government employees required to implement and enforce the Plan Amendments and due to an increase in taxes for properties not directly affected by the Plan Amendments. None of these allegations were supported by record evidence. Notice Petitioners' allegation of improper notice is contained in paragraph 7.I. of the Amended Petition: Petitioners allege that THE AMENDMENT is subject to the notice requirements of Florida Statute subsections 163.3161(18), 163.3181, 163.3184(15), 125.66(2), and or 125.66(4) and that Respondent COUNTY has failed to comply with said statutes. (Several other paragraphs of the Amended Petition also allege inadequate notice. See Findings of Fact 19, 28, 44, 50, 54, 63, 65, and 76, infra.) Petitioners filed copies of the applicable advertisements. Moehle testified that the type was "wrong" and the size was "wrong" - the exact nature of the alleged error was not stated. But review of the advertisements for the transmittal and adoption hearings reveals that both are two columns wide, and the headline appears to be in a very large, bold type. Other than Moehle's general complaint about the type being "wrong," there was no testimony or other evidence that the type is not 18-point. Other aspects of the advertisements do not appear to be challenged by Petitioners. The advertisements themselves show that the transmittal hearing was held on November 30, 1999 (a Tuesday) and that the advertisement was run on November 22, 1999, eight days prior to the day of the hearing. They also show that the adoption hearing was on May 16, 2000 (a Tuesday). The advertisement for the adoption hearing was run on May 10, 2000, six days prior to the meeting. The proof of publication shows that the advertisements were not in a portion of the newspaper where legal notices or classified ads appear and that the Florida Today is a newspaper of general circulation. The evidence also included advertisements for local planning agency hearings and meetings relating to the Plan Amendments other than the transmittal and adoption hearings. These other advertisements appear to have been published in legal ad sections, and the type is smaller than that used for the transmittal and adoption hearings. It appears that Moehle was referring to these advertisements when he said the type and size was "wrong." Species and Wetlands Preservation Versus Promoting Infill Development Paragraph 7.IV. of the Amended Petition alleges: The challenged provisions of the THE AMENDMENT, as set forth herein below, violate the legislative intent and spirit of Fl. Stat. Ch. 163, Part II because they place species and wetland preservations over the stated policy goal of promoting infill and development in areas which have concurrency and infrastructure available. The challenged provisions promote leap frog development by making the development of parcels of private property which have concurrency and appropriate infrastructure but also have any quantity of listed species habitat or wetlands unusable. Fl. Stat. Sections 163.3177(10)(h), 163.3177(11). No evidence was offered supporting the claim that species and wetland preservation were "placed over" the goal of promoting infill. Nor was there any evidence provided by Petitioners to show that leapfrog development or urban sprawl was caused by protecting wetlands. To the contrary, Poplin's testimony discussed urban sprawl and leapfrog development in terms of impacts to services and facilities. She clearly stated: "[T]here are no set priorities. We look at each individual local government on a case by case basis. . . . So . . . [it] depends on the context in which its based [sic] in the plan." Poplin also testified that the County had levels of service in place for facilities and services pursuant to Rule 9J-5.0055(1)(a), and that the County's Plan and the subject Plan Amendments have level of service standards which meet the requirements of Rule 9J- 5.0055(2). Poplin also testified that the County had a Capital Improvements Element which was in compliance with Rule 9J- 5.0055(1)(b). She also testified that there was coordination of the various comprehensive plan elements as required by Section 163.3177. Thus, she concluded, the conservation and capital improvements (infrastructure) elements interacted properly. There was no evidence to the contrary. Section 163.3177(10)(h) states that it is the intent of the Legislature to provide public services concurrently with development. Section 163.3177(11) discusses the legislative intent to have innovative planning to address urbanization, protection of environmentally sensitive areas, land use efficiencies in urban areas and conversion of rural land uses. No evidence of any kind was presented regarding these provisions. Certainly, no data and analysis showing failure to meet these statutory provisions were presented by Petitioners. Listed Species Definition Paragraph 8.I.A.2 of the Amendment Petition states: Listed Species definition - pg 11. This change should not be made because the updated Glossary of the Comprehensive Plan was not made available timely for public review and public comments per the hearing and notice requirements of Fl. Stat. Sections 163.3161(18), 163.3181, 163.3184(15), 125.66(2) and or 125.66(4). Prior to the Plan Amendments, the Conservation Element had a Directive entitled "Wildlife." The "Wildlife" directive stated in part: "Development projects should avoid adverse impacts to species listed as endangered, threatened, or species of special concern." The directive also included a definition of the term "listed species": "those species which are listed as either endangered, threatened or as species of special concern." The Plan Amendments deleted these provisions. The stated Justification for deleting the first provision was: "Objective 9 embodies the intent of this directive." The stated Justification for deleting second provision was: "'Listed species' have been defined in the updated Glossary of the Comprehensive Plan." As in several other places in the Amended Petition, Petitioners complain about lack of notice and an opportunity for a hearing as to the updated Glossary. Actually, it appears that the Glossary was not updated along with the Plan Amendments. For that reason, there were no Glossary changes to be noticed. Although the Glossary was not updated to provide the definition of the phrase "listed species," as indicated in the Justification for deleting it from the Directives, the phrase is commonly used to refer to species are listed as threatened or endangered under various state and federal regulations. Rule 9J-5.013(1)(a)5. requires identification and analysis of natural resources including "species listed by federal, state, or local government agencies as endangered, threatened or species of special concern." Species that are federally listed as endangered or threatened (50 C.F.R., Section 17.11) fall under the jurisdiction of the U.S. Fish and Wildlife Service in accordance with the Endangered Species act of 1973, as amended (16 U.S.C. Section 1531, et. seq.). Listed and unlisted bird species, other than waterfowl and game birds, are also federally protected by the Migratory Bird Act (16 U.S.C. Section 703 et. seq.). The bald eagle has additional federal protection under the Bald and Golden Eagle Protection Act (16 U.S.C. Section 668- 668d). Marine animals (including whales, dolphins, and the West Indian Manatee) are also protected by the Marine Mammal Protection Act of 1972 (16 U.S.C. Section 1361 et. seq.) In addition, 24 species of vertebrates are listed by the State as endangered, threatened or species of special concern and are under the jurisdiction of the Florida Fish and Wildlife Conservation Commission, Chapter 39, Florida Administrative Code. Both snook and Atlantic sturgeon receive further state protection under Chapter 46, Florida Administrative Code. The Florida Endangered and Threatened Species Act, 1977, also protects species listed as endangered, threatened or species of special concern under Chapter 372, Florida Statutes (2000). Chapter 372, Florida Statutes (2000), provides additional protection for the American alligator as defined in the Alligators/Crocodilla Protection Act. Sea turtles and the West Indian manatee are further protected by the State through the Marine Turtles Protection Act (Chapter 327, Florida Statutes (2000)) and the Florida Manatee Sanctuary Act (Chapter 327, Florida Statutes (2000)). Petitioners did not prove beyond fair debate that the phrase "listed species" cannot be understood without a specific definition within the comprehensive plan. Conservation Element Policy 8.5, Protection Of Vegetative Communities Paragraph 8.I.B. of the Amended Petition states: Policy 8.5 - pg 41. This change should not be made because the justification is not correct. These referenced lists were not made available to the public at the relevant public hearing for review and comment in violation of the requirements of Fl. Stat. Section 163.3184. The modification goes beyond the stated intent to merely improve readability and clarify the existing policy in that it actually modifies existing policy. . . . (The last clause was stricken. See Preliminary Statement.) Again, there were no changes to the Glossary to be noticed for hearing. Before the Plan Amendments, Policy 8.9 of the Conservation Element provided that the County would develop a program for the protection of vegetative communities from inappropriate development by 1992. The former provision was replaced with Policy 8.5, which revises the action date to 2002 and states that the County shall protect vegetative communities from inappropriate development. G1 and G2 vegetative communities, as contained in the Florida Natural Areas Inventory, were added to S1 and S2 communities (which were already in the Plan) for consideration for protection. Poplin testified that the G1 and G2 categories were defined by the Florida Natural Areas Inventory and were synonymous with the S1 and S2 categories which were already defined in the Plan. The adopted "Justification" for new Policy 8.5 itself indicates that the addition of the G1 and G2 categories "did not add additional vegetative communities that may be considered for protection." In other words, nothing actually changed as to the vegetation (or types of vegetation); only the nomenclature or titles of categories changed. Conservation Element, Objective 9 and Policy 9 Species of Special Concern, Crucial/Critical Habitat Paragraph 8.I.C.,D., and E. of the Amended Petition states: Objective 9 and Policy 9, including sub- sections A, B, C, D, E, of 9.2 (species of special concern, crucial/critical habitat) - pg 43. Species of special concern should not be added. It was discussed at a properly advertised public hearing and its addition was rejected. It was added back at a subsequent and not properly noticed workshop meeting and did not allow proper public input. It is unjustifiably onerous to the regulated public as added, in violation of Fl. Stat. 120.52(8)(g). Crucial habitat should not be allowed to [be] substituted for critical habitat because the new glossary of definitions was not completed timely to allow public review and comment. The resource maps to be used are not identified or indicated that they have been created beyond "draft" status or had proper notice, public review or comment. The reduction from 5 acres to 1 acre in 9.2.C was improperly added at a workshop subsequent to the properly noticed public hearing at which this item was disposed of with public hearing and comment and leaving the size of 5 acres. The provision that the "acquisition of land by the Brevard County Environmentally Endangered Lands Program shall be voluntary, and shall not include the use of eminent domain" should not be removed in Policy 9.4 (pg. 45). These new provisions do not meet the requirements of Fl. Stat. Sections 120.58(8) and 120.525, Fl. Stat. Sections 163.3161(18), Fl. Stat. Sections 163.3181, Fl. Stat. Sections 163.3184(15), Fl. Stat. Sections 125.66(2), and or Fl. Stat. Sections 125.66(4). (The identified sentence and references were stricken. See Preliminary Statement.) Again, there were no changes to the Glossary to be noticed for hearing. As to "crucial habitat," amended Policy 9.2 of the Conservation Element requires that an ordinance be developed by 2002 requiring a "crucial habitat" review at the pre-application stage of certain projects. Previously, the plan required development of an ordinance in 2004 requiring a "critical habitat" review in those situations. Apparently, "critical habitat" was defined in the pre-amendment Glossary. (Neither the Glossary nor the rest of the County's Comprehensive Plan prior to the Plan Amendments was put in evidence.) No regulations regarding "crucial habitat" were in effect as of final hearing. A definition of the term "crucial habitat" might well be desirable. (Apparently, an amendment to the Glossary to include such a definition is being considered by someone--it is not clear from the evidence by whom.) But it is possible to use dictionary definitions of "crucial" and "habitat" to derive a useful meaning of the term "crucial habitat" used in Policy 9.2 of the Conservation Element. Petitioners did not prove beyond fair debate that the term "crucial habitat" cannot be adequately understood without a specific definition in the comprehensive plan. "Species of special concern" is a phrase used by Rule 9J-5.013(1)(a)5. in describing natural resources to be identified and analyzed in a local government's conservation element. The "resource maps" mentioned in paragraph 8.I.C., D., and E. of the Amended Petition are not new to the County's Comprehensive Plan. Prior to the Plan Amendments, Policy 10.2.A. stated that the County's Office of Natural Resources Management must "develop resource maps showing potential areas for critical wildlife habitat for threatened and endangered wildlife species." Amended Policy 9.2.A. requires that Office to "use resource maps which show potential areas of crucial wildlife habitat for threatened and endangered wildlife species and species of special concern." While the descriptions of these maps were changed by the amendment, the general manner in which they are identified is the same. It was not proven beyond fair debate that the amendments cannot be adequately understood without identification in a more specific manner or reference to maps already completed. Petitioners' next complaint in paragraph 8.I.C., D., and E. of the Amended Petition was that the threshold for required crucial habitat review in Policy 9.2.C. of the Conservation Element should not have been changed from five-acre projects to one-acre projects. Petitioners' primary argument was that the County discussed this change at a workshop. The only evidence in support of this argument was Moehle's testimony: "[T]he changes that show up in here were rejected in those previous hearings so the public has the impression well, that item is done and settled. Then all of a sudden at a workshop it shows up when nobody - they are not necessarily -- you can't obtain the advance agenda for that and you find a notice in the paper from time to time." In fact, the workshops were noticed in the newspapers. In addition, the transmittal and adoption hearings were noticed. See Findings of Fact 12-14, supra. As for Petitioners' request for reinstatement of the language regarding voluntary acquisition of environmentally endangered lands, former Policy 10.4 addressed development of an acquisition program; amended Policy 9.4 addresses a continuation of that program. The Justification explains that the amendments were "intended to reflect the achievement of this policy as a result of the EELs [Environmentally Endangered Lands] Program." There was no evidence to support the argument that removal of the voluntary acquisition language in any way changes the EELs Program or creates a compliance issue. Conservation Element Policy 9.13, Species of Special Concern Paragraph 8.I.G. of the Amended Petition stated: Policy 9.13 - species of special concern, habitat rarity, pg 48. This change is inconsistent with the same Florida Statutes and for the same reasons as I.C, I.D, I.E (A, B, C, E, E) and I.F above. Policy 9.13 contains a requirement to develop model management plans for species of special concern dependent on habitat rarity and loss rates. The amendment to former Policy 10.13 merely changes the target date (from 1990 to 2002) and adds "species of special concern" to the other resources sought to be addressed by the model management plans. The provision does not establish new regulations. It merely calls for future action in the development of model management plans. Again, there was no evidence to support the argument that these changes created a compliance issue. See Findings of Fact 32-33, supra. Scrub Habitat Map Paragraph 8.I.H. of the Amended Petition stated: Appendix - List of Maps, pg 52. The Scrub Habitat Map should not be included because it is part of the Scrub Habitat Study done in Brevard County which was not adopted/accepted as a final map by the Brevard County Board of County Commissioners. The map is a "draft" map done over 5 years ago, not finalized, and not accurate. Objections at public meetings, with Brevard County Staff, and with the outside consultants preparing the map have never been addressed on the map. Among the inaccuracies are hundreds (maybe thousands) of acres on government lands. The map is wholly deficient and incorrect to become an official map representing the scrub habitat of Brevard County. It doesn't come close to accurately depicting the scrub situation of Brevard County. The map is not supported by competent substantial evidence, has not been officially adopted by the County Commission, the requisite public notices have not been held. Any policy or regulation based upon the map would be equally erroneous and would result in unnecessary regulatory costs, and would be arbitrary or capricious and would be based upon inadequate standards. At final hearing, Moehle testified: "The scrub habitat map as included in the amendments does not include the best available information which information has been available for a number of years." But the Scrub Jay Habitat map Petitioners sought to use to prove this contention (Petitioners' Exhibit 6) was not admitted into evidence because it was not authenticated. The Scrub Habitat Map apparently added to the Appendix of Conservation Element maps through the B.12 Plan Amendments does not appear to map scrub on federal lands. (At least, no scrub is indicated in the extensive federal lands on the map.) But there was no competent evidence as to the significance of the failure to map scrub habitat on federal lands. (Nor did Petitioners cite to any authority for the proposition that excluding federal lands outside the County's jurisdiction is a violation of Chapter 163 or Rule 9J-5.) While Petitioners never clearly articulated their concerns about the Scrub Habitat Map, it appeared that they might have had concerns about the impact of the map on protection of scrub jays. Specifically, Petitioners seem to contend that some scrub jays will not be protected as a result of the map's omission of scrub on federal lands. But, in that regard, amended Conservation Element Policy 9.2. in the B.12 Plan Amendments provides for the development of an ordinance by 2002 that would provide, among other things, that if any endangered or threatened species or species of special concern are found on a project site, or there is evidence that such a species is onsite, the relevant state and federal agency permits would have to be obtained and documented prior to issuance of a building or construction permit. Once adopted, these regulations would protect scrub jays wherever the birds exist. Another apparent concern was that the Scrub Habitat Map allegedly was over 5 years old. Meanwhile, other maps allegedly have been or are in the process of being developed. But Petitioners' evidence was insufficient to prove beyond fair debate that the Scrub Habitat Map was not the best available data at the time of adoption of the Plan Amendments. Land Use Element, Administrative Policies Paragraph 8.II. of the Amended Petition states: Comprehensive Plan Amendment 1999B.13 The Administrative Policies 1 thru 8 (pg iv) which have been proposed for inclusion in the future Land Use Element by the County Attorney and added by a April 29, 2000 workshop were not timely provided for public review and comment by a properly noticed hearing in violation of the notice requirements of Florida Statutes subsections 163.3161(18), 163.3181, 163.3184(15), 125.66(2) and 125.66(4). They are over- broad, too general in nature, vague, and fail to establish adequate standards for county staff decisions, and vest unbridled discretion in the county staff in violation of Florida Statute 120.54(8). Detailed examples of this include: In Administrative Policy 1 - Brevard County zoning officials, planners and the director of planning and zoning should not be arbitrarily, capriciously, and without adequate defined standards be recognized as expert witnesses. Standards with detailed qualifications should be developed and included for each category of expert before this provision is considered for adoption. In Policy 2 (page iv) county staff recommendation should not automatically be considered expert testimony without qualifications. Page 1 under DIRECTIVES. The Future Land Use paragraph should not be deleted until sufficient emphasis has been placed in the requirement to ensure that sufficient land uses are available to support the anticipated population. It has not been at this time, in violation of Florida Statutes subsections 163.3177(2), 163.3177(3)(a), 163.3177(6)(a) and 163.3177(6)(f). As to 8.II.A., the evidence indicated that the advertisements were published in the time frames required and according to the standards set out by statute. See Findings of Fact 12-14, supra. Furthermore, Petitioners failed to establish that the Administrative Policies 1-8 were unavailable at the public hearing or that the Board of County Commissioners was not authorized to consider those policies. The language of the last sentence of paragraph 8.II. should have been stricken with similar provisions at the beginning of the final hearing because of its reliance on Section 120.54(8), which addresses rulemaking activities and not the compliance requirements of Chapter 163. There was no competent, substantial evidence to support any of the other allegations in paragraph 8.II.A. As to 8.II.A.(iii), there was only Moehle's statement regarding the lack of land availability while he was questioning Poplin. Poplin testified that the County should provide an adequate amount of different land uses to accommodate a variety of people and activities. She also testified that the County had provided more than enough residential land to accommodate projected populations. Poplin noted that the County's EAR (Evaluation and Appraisal Report) included or referenced several sources indicating that the County has more than enough land to meet their residential and non-residential needs through the planning time frame. In fact, she testified that land allocated for residential use is over 170 percent of the land necessary for the County's projected population. In explaining the "right-sizing" undertaken in the Plan Amendment, Poplin testified that two major changes have occurred since the adoption of the original County Plan. First, the County sold a substantial amount of land to the water management district; this land is now designated as Conservation. Secondly, some developments have been built to less than their full potential. Poplin testified: "My understanding of the County's actions is that this right sizing is to recognize areas that have developed and maybe have developed at lower densities. So by revising the densities on the map, they're recognizing this." Finally, Poplin testified that the future land use map (FLUM) and the policies proposed in the subject Plan Amendment are consistent with previous actions, previous development patterns, and previous purchases that have occurred within the County. As for Section 163.3177(2), cited by Petitioners at the end of paragraph 8.II.A.(iii) of the Amended Petition, the statute requires coordination of the land use elements. Poplin testified that the County has adequate facilities and services to provide for the land use plan proposed in its FLUM. Section 163.3177(6)(f) requires a housing element. There was no evidence that these elements do not exist in the County's comprehensive plan. Land Use Element Policy 1.1, Residential Land Use Designations Almost all of Paragraph 8.II.B. of the Amended Petition was stricken. See Preliminary Statement. Only the title and last sentence remained: Residential Land Use Designations, Policy 1.1 (reduced densities - pg 14). Property owners (including PETITIONERS) whose land use/zoning classification is no longer in compliance with the comprehensive plan amendment have not been notified as required by Florida Statutes subsection 125.66. Petitioners themselves provided evidence establishing that the statutory notice was properly given. See Findings of Fact 12- 14, supra. Land Use Element Policy 1.2, Public Facilities and Services The last sentence of Paragraph 8.II.C. of the Amended Petition was stricken. See Preliminary Statement. The remaining allegation was: Public Facilities and Services Requirements, Policy 1.2 (page 15). In subsection E, the prohibition by use of the words "shall not" are too harsh, restrictive, and confiscatory and should be replaced "shall not be required at the expense of the County." But the language of Criterion F under Future Land Use Element (FLUE) Policy 1.2 already states what Petitioners seek. Simply stated, Petitioners want the policy to state that private parties were not prohibited from building additional public facilities. The second sentence of the policy states: "This criterion is not intended to preclude acceptance of dedicated facilities and services by the county through . . . other means through which the recipients pay for the service or facility." Finally, the language of Criterion F under Policy 1.2 existed elsewhere in the Comprehensive Plan prior to the Plan Amendments; it is not new. The Plan Amendments simply changed the location of the language in the Plan. Land Use Policies 1.31 and 1.4 Paragraph 8.II.D. of the Amended Petition stated: Residential 30, Policy 1.31 and Residential 15, Policy 1.4 (pgs. 16, 18). In subsections 1.31.A.1.3 and 1.4.A. respectively, the limitation of this designation to east of Interstate 95 is arbitrary, capricious and is not supported by substantial evidence. It imposes excessive regulatory costs upon regulated property owners. It is confiscatory and fails to recognize the vested rights of property owners. There are areas west of Interstate 95 just as suitable and qualifying as areas east of Interstate 95. This policy fails to recognize existing or new infrastructure which services areas west of I-95 and is therefore inconsistent with other policies. New policy 1.4 is similar and related and also limits densities west of Interstate 95 under all circumstances. This change and any other related restrictions to all areas west of I-95 should be eliminated. FLUE Policies 1.3 (the proper number, not 1.31) and 1.4 deal with residential densities. Pertinent to Petitioners' complaint, Residential 30, allowing up to 30 units per acre, is located east of Interstate 95; generally, maximum residential density west of Interstate 95 is 15 units per acre in Residential 15, except where "adjacent to existing or designated residential densities of an equal or higher density allowance." Petitioners presented no evidence in opposition to these residential densities or designations or the data and analysis supporting them. To the contrary, Poplin testified that there was adequate data and analysis to support the changes. See Finding of Fact 47, supra. The other issues raised, such as excessive regulatory costs, relate to Section 120.52, Florida Statutes (2000), standards and are not at issue in the proceeding. Land Use Policy 2.8, Community Commercial Designation Paragraph 8.II.E. of the Amended Petition stated: Locational and Development Criteria for Community Commercial Uses, Policy 2.8 (pg 38). Subsection B regarding community commercial complexes should not be limited to 40 acres at an intersection for properties that have existing land use or zoning designations compatible to the new Community Commercial designation. The same is true for the limitations of subsections, C, D, and E. These new limitations are confiscatory, fail to recognize existing land use and zoning and vested rights of property owners, are arbitrary, capricious, are not supported by competent substantial evidence, enlarge existing regulations without justification. They impose additional regulatory costs on regulated property owners when the goal of Florida Statutes Chapter 163 could be met by less restrictive and costly regulatory alternatives. Other provisions of Policy 2.8, Table 2.2, Policy 2.9, Policy 2.10 that exceed the present regulation of properties having existing land use or zoning designations or actual use should not be allowed for the same reasons. Additionally, many of these amendments were added at a April 29, 2000 workshop without complying with applicable public notice requirements. Public review and input as to these elements was therefore lacking. The plain language of Criterion B under FLUE Policy 2.8 demonstrates that the restrictions have been relaxed, not increased. Previously, Criterion C under Policy 2.8 stated: "Sites for community commercial complexes should not exceed 20 acres." The letter designation of the criterion was changed, and the criterion was amended to read: "Community commercial complexes should not exceed 40 acres at an intersection." The Justification for the change states: "Site size has been enlarged to 40 acres maximum at an intersection. Previously, this criterion could be interpreted to permit a maximum of 80 acres at an intersection (20 acres at each corner). Forty acres has been chosen as this is the DRI threshold for commercial development." On its face, the purpose of amended Criterion B under Policy 2.8 was twofold: to enlarge the site size restriction from 20 to 40 acres; and to clarify that the restriction (now 40 acres) was meant to apply to all community commercial regardless whether they are located at intersections; locating a project on different sides of the street at an intersection was not supposed to double, triple, or even quadruple the maximum site size. Petitioners' position that amended Criterion B under Policy 2.8 shrinks maximum allowable the site size is based on Moehle's assumption that 80-acre projects were permitted at intersections under prior to amended Criterion B under Policy 2.8. But there was no competent, substantial evidence to support Moehle's assumption. Petitioners also seem to contend that the phrase "at an intersection" is imprecise, leading to uncertainty that undermines the required residential allocation analysis. But it is at least fairly debatable that no more precise definition is necessary. Contrary to Moehle's speculation, it is not reasonable to construe the phrase "at an intersection" to also mean "at an indeterminate distance away from an intersection." Petitioners also took the position that "folding" previous land use classifications into Community Commercial greatly expanded the practical effect of the acreage limitation in amended Criterion B under Policy 2.8. Petitioners' evidence did not explain their position in any detail or specificity. It is possible that they had reference to Criterion D under Policy 4.5 prior to the Plan Amendment, which allowed "regional commercial centers to incorporate up to 100 acres." If so, under the B.13 Plan Amendments, amended Policy 2.12 addresses regional commercial centers by requiring their location in a new Development of Regional Impact (DRI) future land use designation. The Justification for this change was: "With the proposed establishment of a Development of Regional Impact (DRI) land use category, regional uses will no longer be permitted in a commercial future land use designation. Review in accordance with Chapter 380, F.S. standards is intended to simplify readability and maintain consistency with state statutes." Reading amended Criterion B under Policy 2.8 together with amended Policy 2.12, commercial complexes larger than 40 acres are not prohibited under the Plan Amendment; they just have to be developed in a DRI land use category under Chapter 380 DRI standards. The reasonableness of these amendments is at least fairly debatable. Meanwhile, Poplin specifically testified that the data and analysis provided by the County were adequate to support the residential and nonresidential changes, including Community Commercial and Neighborhood Commercial changes. No contrary evidence was provided. Policies 2.9 and 2.10 allow minimal extensions of commercial boundaries. No evidence was presented addressing these items. The clear evidence was contrary to Petitioners' claim of notice violations. See Findings of Fact 12-14, supra. Transitional Commercial Activities Paragraph 8.II.F. of the Amended Petition states: Transitional Commercial Activities - Community Commercial - General Tourist Commercial (TU-1) - Highway Transient Tourist (TU-2). Existing properties with Mixed Use Land Use Designations and General Tourist Commercial (TU-1) and Highway Transient Tourist (TU-2) zoning classifications have not been protected with their existing regulation constraint in the transformation into the new Neighborhood Commercial and Community Commercial Regulations as has been asserted by the COUNTY in the revised objective and policies in the provisions covering these classifications as asserted by the COUNTY. Either proposed changes should conform or the changes should not be made. The same objections and changes are made for the new confiscatory provisions of the COUNTY for existing Industrial Land Use Designations and Zoning classifications under Industrial Land Uses (Objective 3, Policy 3, pg 55). The same objections and challenges are made for new confiscatory provisions of Agricultural Land Uses (pg 67) for existing Land Use Designations and densities of lands including reductions of densities to 1 unit per 5 acres by changes from a residential classification (including existing recorded subdivision plats). Many new items of the above were made at the April 29, 2000 workshop and proper public notices, review, and comment was not available. Petitioners failed to demonstrate any impact on actual development as a result of these future land use designation changes. No defect in notice was established by the evidence. Rather, the evidence indicated that all advertising requirements were met. See Findings of Fact 12-14, supra. Finally, Poplin testified that the majority of land uses remained the same based on existing uses, and that all changes were supported by data and analysis. Future Land Use Maps Update Paragraph 8.III.A. of the Amended Petition states: Comprehensive Plan Amendment 1999 B.14. The Future Land Use Maps Update Report - The Geographic Information Systems (GIS) maps are not consistent with the existing FLUM and RDG maps. There are corrections and amplifications needed before they are acceptable. The COUNTY did not either have available or make available to the public for review and comment the map(s) as transmitted to DCA at any properly noticed Public Hearing. It was asserted by the COUNTY that no Land Use Designations, Zoning, or Density Allocation changes, were being made to property owners. That is not true. Some specific examples are Sections 3 & 15, located within Township 22 South, Range 34 East, which were changed from Residential to Agriculture Use (density from 1 unit per acre to 1 unit per 5 acres) and Sections 1, 2, 11, 12, 13, 14 within Township 22 South, Range 34 East, from density of 1 unit per acre to 1 acre per 2.5 acres. The FLUM Report explains that the FLUM series was converted from graphic format to computerized geographic information system (GIS) format; as a result, the Residential Density Guidelines (RDG) map series could be combined with the FLUM series. Petitioners failed to establish any facts demonstrating that the new GIS FLUM series was not available or discussed at properly noticed public hearings. As to notice, see Findings of Fact 12-14, supra. There was no evidence of errors on the GIS maps. Petitioners complained that the GIS maps are unusable because they are too hard to read, especially because they were black and white. But actually the FLUM series is in color. There was no competent, substantial evidence that the color maps were too hard to read or unusable. Petitioners generally complained about residential density reductions but failed to present any competent, substantial evidence as to what supposedly was wrong with those reductions. Petitioners seem to believe that they should be able to obtain all information regarding their property from the Comprehensive Plan. There is no regulation cited by Petitioners requiring that the maps be of sufficient detail to enable someone to determine all possible uses of property based solely on a review of the maps. As a practical matter, additional site-specific information is nearly always necessary. In addition, GIS maps are computerized maps which are merely referenced by the Plan. The GIS system must ultimately be consulted regarding site-specific information. Poplin testified that the GIS updating of the FLUM and RDG map series was done primarily to streamline and consolidate the two previously separate maps. Contrary to Petitioners' assertions, Poplin testified that the conversion from two graphic maps to the GIS maps was a very positive change. Mixed Use District Conversion Paragraph 8.III.B. of the Amended Petition stated: Under the MIXED USE DISTRICT CONVERSION (pg 1) - Mixed Use District (MUD) land use designation and zoning classification of General Tourist Commercial (TU-1) or Highway Tourist Commercial (TU-2) existing classifications were not listed as being reclassified (to be designated as Community Commercial). Petitioners base this contention solely on the FLUM Update in the B.14 Plan Amendments. Petitioners' contention ignores FLUE Policy 2.7 in the B.13 Plan Amendments, one of the operative policies relating to the conversion from MUD. Policy 2.7 states which uses are allowed under the Community Commercial designation. Subparagraph "c" lists "Tourist Commercial uses" as being a use under Community Commercial. In their response to the motion for involuntary dismissal, Petitioners finally acknowledged Policy 2.7 but still maintain that it cannot be determined whether TU-1 and TU-2 zoning will be classified as Community Commercial or as Neighborhood Commercial. In making this argument, Petitioners ignore FLUE Policy 2.5, another operative policy in the B.13 section of the Plan Amendment, relating to the conversion from MUD. Policy 2.5 lists "[d]evelopment activities which may be considered within Neighborhood Commercial" and omits any "tourist commercial" development activities. Based on the evidence, it seems clear that both TU-1 and TU-2 zoning will be classified as Community Commercial, and not as Neighborhood Commercial. Petitioners' allegations that they were omitted from the MUD conversion are incorrect. More About the Glossary Paragraph 8.I.V. of the Amended Petition stated: Glossary, Definitions, Thresholds, Maps relating to Comprehensive Plan Amendments 1999 B.12, 1999 B.13 and 1999 B.14. Revised Glossary. A new Glossary and definitions was never completed and made available to the public before any properly noticed Public Hearing to properly allow public review, input, comment, etc. Incomplete or inaccurate data on thresholds and maps relating to Comprehensive Plan Amendments 1999 B.12, 1999 B.13 and 1999 B.14 were also not available. As previously found, the Glossary was not amended, and it would be inappropriate to advertise the Glossary for changes. There is no requirement that a glossary be included in a comprehensive plan. When a glossary is included, not every word in a comprehensive plan must be included. Forested Wetlands Location Map At final hearing, Petitioners asserted that the Forested Wetlands Location Map referred to and incorporated by reference in Policy 5.2.F.3. of the Conservation Element was not the best available data. This issue was not raised in the Amended Petition, and consideration of the merits of the assertion has been waived. In addition, as previously found, the language of Policy 5.2.F.3. was adopted prior to the Plan Amendments at issue in this case. See Finding of Fact 8, supra. On the merits of the argument, three forested wetlands maps were offered into evidence (as Petitioners' Exhibits 2, 3, and 4.) Only Petitioners' Exhibit 2 was admitted into evidence. Petitioners' Exhibit 2 reflects the Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan. Without Petitioners' Exhibits 3 or 4 being in evidence, or any other evidence on the issue, Moehle's testimony was insufficient to prove beyond fair debate that the Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan was not the best available data at the time of incorporation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order dismissing the Amended Petition and finding that Brevard County's Plan Amendments B.12, B.13, and B.14 are "in compliance." DONE AND ENTERED this 21st day of May, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2001. COPIES FURNISHED: Eden Bentley, Esquire Brevard County Attorney's Office 2725 St. Johns Street Viera, Florida 32940 Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Charles F. Moehle Modern, Inc. Post Office Box 321417 Cocoa Beach, Florida 32932 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background 1. E. K. Edwards (Edwards) and Richard J. Clark (Clark), who are non-parties, own two tracts of land totaling 43.76 acres approximately four or five miles west-northwest of the City of Pensacola in unincorporated Escambia County. The larger tract (known as the Northern Parcel and owned by Edwards) consists of one parcel totaling 26.76 acres and is located at 2700 Blue Angel Parkway, also known as State Road 173. The second tract (known as the Southern Parcel and owned by Clark) consists of four contiguous parcels totaling around 17 acres and is located approximately 560 feet south of the Northern Parcel at the northeastern quadrant of the intersection of Blue Angel Parkway and Sorrento Road (intersection). The two tracts are separated by two large privately-owned lots that currently have residential uses. (However, the land use on one of those parcels, totaling almost 9 acres, was recently changed to a Commercial land use designation. See Finding of Fact 15, infra.) On July 10, 2002, a realtor (acting as agent on behalf of the two owners) filed an application with the County seeking to change the land use on the FLUM for both the Northern and Southern Parcels from LDR to Commercial. The LDR category allows residential densities ranging from one dwelling unit per five acres to 18 dwelling units per acre, as well as neighborhood commercial uses. The Commercial category would allow the owners to place a broad range of commercial uses on their property, such as shopping centers, professional offices, medical facilities, convenience retail, or other similar uses. On November 20, 2002, the County Planning Board (on which Petitioner was then a member) considered the application and voted unanimously to change the land use classification on the Southern Parcel to Commercial. It also voted to change the non-wetlands portion of the Northern Parcel to Commercial. However, the request to change the land use on the wetlands portion of the Northern Parcel was denied. This recommendation was forwarded to the Board of County Commissioners (Board), which modified the Planning Board's recommendation and approved the application as originally submitted. The amendment was then sent to the Department for an in compliance determination. On June 13, 2003, the Department issued its Objections, Recommendations, and Comments (ORC) Report. In the ORC, the Department expressed concerns that there were insufficient "adequate data and analyses to demonstrate the suitability of the [Northern Parcel] for the proposed Future Land Use designation" because of the presence of on-site wetlands. The ORC went on to say that the County had failed to demonstrate how the proposed amendment would be consistent with four other Plan provisions that prohibit the location of commercial and industrial land uses in certain types of wetlands. The ORC recommended that the County "provide a more detailed characterization of the site and the surrounding area relative to the natural resources [wetlands] on the amendment site and the general area." After the issuance of the ORC, Mr. Edwards retained an ecological consultant, Dr. Joe A. Edmisten, to address the Department's concerns. On July 16, 2003, Dr. Edmisten submitted a 14-page Report in which he essentially concluded that while there were wetlands on the site, there were no endangered, threatened, rare, or listed plant or animal species. That Report has been received in evidence as Petitioner's Exhibit 4. In light of this new information, the Planning Board again considered the matter on August 20, 2003, and by a four- to-one-vote recommended that the application, as originally filed, be approved. The matter was then forwarded to the Board. In response to an inquiry by a Board member at the Board's meeting on September 4, 2003, Dr. Edmisten stated that he found a "few pitcher plants in the wetlands [on Mr. Edwards' property]," including Sarracenia leucophylla, which is on the State (but not federal) Endangered Plant List. See Fla. Admin. Code R. 5B-40.0055(1)(a)334. Even though this information had not been disclosed in the Report, by a three- to-two vote, the Board adopted Ordinance No. 2003-45, which approved the change to the FLUM for both the Northern and Southern Parcels. On October 24, 2003, the Department issued its Notice of Intent to Find the Escambia County Comprehensive Plan Amendment in Compliance. On November 17, 2003, Petitioner, who resides, owns property, and operates a business within the County, and submitted written or oral comments, objections, or recommendations to the County before the amendment was adopted, filed his Petition alleging that the plan amendment was not in compliance. Petitioner is an affected person within the meaning of the law and has standing to file his Petition. In the parties' Pre-Hearing Stipulation, Petitioner contends that there is inadequate data and analyses relative to the natural environment (wetlands), traffic concurrency, and urban sprawl to support the amendment. As further clarified by Petitioner, he does not challenge the change in the FLUM for the Southern Parcel, but only contests that portion of the amendment which changes the land use on the Northern Parcel, on which wetlands are sited. In view of this, only the Northern Parcel will be considered in this Recommended Order. The Property The Northern Parcel fronts on the eastern side of Blue Angel Parkway approximately 1,400 feet north of the intersection. In broader geographic terms, the property is in western Escambia County and appears to be several miles west- northwest of the Pensacola Naval Air Station (which lies west- southwest of the City of Pensacola) and several miles south of U.S. Highway 98, which runs east-west through the southern part of the County. Blue Angel Parkway is a minor arterial roadway (at least where it runs in front of the Northern Parcel) and begins at the Pensacola Naval Air Station (to the south) and runs north to at least U.S. Highway 98. From the Naval Air Station to the intersection, Blue Angel Parkway appears to have four lanes, and from that point continuing past the Northern Parcel to U.S. Highway 98, it narrows to two undivided lanes. At the present time, an old borrow pit sits on the eastern side of the land, for which the property was given a special exception by the County's Zoning Board of Adjustments in March 1995. Also, there are at least three other ponds (or old borrow pits) formerly used by the owner for catfish farming; two large, unused metal buildings (apparently hangars) moved from the Naval Air Station to the property as military surplus; and numerous stored empty tanks in the southeastern corner of the property. The remainder of the property is vacant. When Dr. Edmisten's Report was submitted in July 2003, all of the ponds were filled with water due to recent heavy rains. Because of existing development at all corners of the intersection except the southwest corner, the intersection has been designated by the County as a commercial node, and the County considers the node to extend from the intersection northward along the eastern side of Blue Angel Parkway to the Northern Parcel. (However, on the western side of the road, the County has determined that the node terminates at the end of a parcel on which a Wal-Mart Super Center sits, and that further commercial development beyond that point would be inappropriate.) This determination is consistent with the Commercial land use classification found on the western portion of the Northern Parcel. See Finding of Fact 13, infra. The property presently carries a split future land use: an approximate 150-foot deep sliver of land which fronts on Blue Angel Parkway is classified as Commercial, while the remainder of the parcel is LDR. This dichotomy in land uses stems from a decision by the County in 1993 (when the Plan was adopted) to designate a narrow commercial strip on both sides of Blue Angel Parkway from just south of the intersection to Dog Track Road, which lies north of the Northern Parcel. The property also carries an Industrial zoning classification (presumably related to the mining activities), even though the land use on most of the parcel is residential. By his application, Edwards is seeking to "unify" the back or eastern portion of his property, which is now LDR, with the western portion fronting on Blue Angel Parkway, which is classified as Commercial. To the east of the Northern Parcel is Coral Creek, a fairly large residential subdivision platted in the 1990s. Some of the single-family lots in that subdivision back up to the eastern boundary of the property. The property to the north is vacant, is populated with some pitcher plants, and is classified as residential. Across the street and to the southwest is a new Wal-Mart Super Center which opened in the last year or so at the northwestern quadrant of the intersection. (The northern boundary of the Wal-Mart Super Center parcel is directly across the street from the southern boundary of the Northern Parcel.) The property directly across the street and extending to the north is vacant and classified as Residential. That parcel also contains pitcher plants and is informally designated as "pitcher plant prairie." The property which separates the Northern and Southern Parcels is classified as Residential, except for 8.98 acres which were recently changed from LDR to Commercial through a small-scale development amendment approved by the Department. See Gregory L. Strand v. Escambia County, DOAH Case No. 03-2980GM (DOAH Recommended Order Dec. 23, 2003; DCA Final Order Jan. 28, 2004). The Final Order in that case, however, has been appealed by Petitioner. While the precise amount of wetlands on the site is unknown, the record does indicate that wetlands exist on "approximately" one-half of the Northern Parcel, or around thirteen or so acres, leaving a like amount of uplands. (Therefore, even if the property is reclassified, the amount of development on the property will be restricted in some measure through the application of the County's Wetlands Ordinance found in the Land Development Code.) A small area of wetlands exists on the western side of the property near Blue Angel Parkway while a larger wetland system lies on the eastern side of the property and acts as a buffer with the Coral Creek subdivision. The wetlands are under the permitting jurisdiction of the United States Corps of Engineers, the Department of Environmental Protection, and the County. Petitioner's Objections Petitioner contends that the amendment is not in compliance because there is inadequate data and analyses relative to conservation (wetlands), traffic, and urban sprawl to support the change in the land use.2 These issues will be addressed separately below. Wetlands As to this objection, Petitioner's principal concern is that if the land use change is approved, there will be much more intense development on the property which will result in a loss of wetlands, even with mitigation. Citing Policy 11.A.2.6.d of the Coastal Management Element of the Plan, he contends that there is insufficient data and analyses to support the plan amendment's distribution of land uses in such a way as to minimize the effect and impact on wetlands. The cited policy contains provisions which govern the development of lands within wetland areas, including one provision which states that "commercial and industrial land uses will not be located in wetlands that have a high degree of hydrological or biological significance, including the following types of wetlands: . . . Wetlands that have a high degree of biodiversity or habitat value, based on maps prepared by the Florida Fish and Wildlife Commission or Florida National Areas Inventory, unless a site survey demonstrates that there are no listed plant or animal species on the site." In Case No. 03-2980GM, supra, which involved a change in the FLUM on a parcel of property which separates the Northern and Southern Parcels, Petitioner contended, among other things, that the terms of Policy 11.A.2.6.d should apply whenever the FLUM is being amended, and that because there were wetlands on the parcel, along with two types of endangered plants, the policy prohibited a change from a residential to a commercial land use. In rejecting that contention, however, the Department approved and adopted language by the Administrative Law Judge which concluded, for several reasons, that "the County intended Policy 11.A.2.6.a through e to apply to decisions of the County regarding development applications and not to changes in future land use designations or categories in a FLUM." (Recommended Order, page 19). Therefore, the policy applies to development applications, and not to FLUM amendments, and does not have to be considered at this juncture. (That policy, and the County's Wetlands Ordinance, will obviously come into play at the time a site plan is filed and the owner seeks to develop the property.) As such, there is no need for data and analyses at this time to demonstrate that the policy has been satisfied. As noted above, after the Department issued its ORC, Mr. Edwards engaged the services of Dr. Edmisten, who performed a study and prepared a Report that evaluated the wetlands on the Northern Parcel. That Report constitutes much of the data and analyses which support the amendment. Despite the presence of one endangered plant species, the Report indicates that the wetlands do not have a high degree of hydrological or biological significance; that the change in the FLUM is consistent with all relevant policies in the Plan, including those cited in the ORC; that a mitigation plan will be offered prior to any development; and that all wetlands issues will be addressed during the development stage. The Report also indicates that among other things, Dr. Edmisten utilized the National Wetlands Inventory Map in reaching his conclusions. The Department reviewed the document and found that it constituted the best available data and analyses, that the data were analyzed in a professional manner, and that the County reacted to the data in an appropriate manner when it adopted the amendment. This is especially true since the County has provisions in its Plan for wetlands avoidance and fully considers these issues through the site-review process. Given these considerations, it is at least fairly debatable that there exist adequate data and analyses regarding wetlands to support the change in the land use on the property. Traffic Petitioner also contends that there is a lack of adequate data and analyses to demonstrate that the proposed change in land use will not adversely impact traffic in the area. More specifically, he contends that the County failed to perform an analysis of infrastructure capacity, and that it also failed to include information that Blue Angel Parkway is not in its five-year plan for improvements. Data and analyses were provided in the form of a spreadsheet dated November 6, 2002, and entitled Traffic Volume and Level of Service Report (Traffic Report). The Traffic Report contained several categories of information regarding traffic volume, Level of Service (LOS), and other transportation information. (See Petitioner's Exhibit 1) The data were far more detailed than data previously used by the County on other amendments of this size and character, and they were based on Florida Department of Transportation (DOT) accepted standards of traffic calculations. The data and analyses were the best available at the time the plan amendment was adopted. The data shows that the section of Blue Angel Parkway on which the Northern Parcel fronts has an adopted LOS of "D." At the time the amendment was adopted, the service volume on that portion of the road was 74 percent, which means that the roadway was operating at 74 percent of its capacity. Therefore, when the amendment was adopted, the roadway was not failing, and it could handle additional traffic, including any that might be associated with the future development of the land. Petitioner also contends that the County's study was flawed because the County used so-called "Art Tab" software, which became outdated after September 1, 2002. (Art-Tab software has now been updated and is called Free Plan software.) He further suggests that the County should have performed a new study using updated software. Under DOT requirements set forth in its Quality/Level of Service Handbook, however, the County was not required to redo its analysis; rather, it was required to use the new software only in the event further studies were required. Because Blue Angel Parkway was not failing at the time the study was performed, it was not necessary for the County to undertake a new study. During the interagency review process, the DOT did not issue any objections, recommendations, or comments to the Department concerning the amendment. Finally, Petitioner contends that because the County did not have Blue Angel Parkway on any road improvement list at the time the amendment was adopted, its analysis of infrastructure capacity was flawed. See Section 163.3177(3)(a), Florida Statutes, which requires that each local government's comprehensive plan contain a capital improvements element with a component which outlines the principles for correcting public facility deficiencies covering at least a five-year period. Whether the County's Plan contains such a component is not of record. In any event, even if the County failed to consider the fact that Blue Angel Parkway was not scheduled for upgrading when the amendment was adopted, given the other data and analyses available at that time (the traffic spreadsheet), which reflected that the roadway was operating below capacity, the County had sufficient information regarding infrastructure capacity to support the amendment. Based on the foregoing, it is at least fairly debatable that the amendment has adequate data and analyses relative to traffic impacts to support the land use change. Urban sprawl Finally, Petitioner asserts that no data were gathered and no analyses were performed to demonstrate that the change in land use will discourage urban sprawl. In this case, the Department did not require that the County perform an urban sprawl analysis, given the type of surrounding land uses; the relative small size of the Northern Parcel; the absence of any land use allocation problems; the ability of the owner to now place up to 18 units per acre and/or neighborhood commercial development on the property under the current LDR classification; and the fact that the Northern Parcel is located on the edge of a rapidly urbanizing area of the County. At the same time, Petitioner presented no evidence which supported the need for such a study. The Northern (and Southern) Parcel is located in a rapidly urbanizing area of the County and is close to several other urban uses. Indeed, as noted earlier, there is a Wal- Mart Super Center across the street at the northwestern quadrant of the intersection, and a mix of commercial and residential uses abut the intersection to the southeast. All four corners of the intersection have been designated as a commercial node in the County's draft Southwest Sector Plan, and the County has determined that the node continues northward on the eastern side of the road to and including the Northern Parcel. As a general rule, the Department considers the size and shape of nodes to be a local government decision, and it found no reason here to question that determination. The Plan encourages commercial development at intersectional nodes. Under Florida Administrative Code Rule 9J- 5.003(134), urban sprawl is defined in part as "urban development or uses which are located in predominately rural areas." Indicators of urban sprawl include "[t]he premature or poorly planned conversion of rural land to other uses," and the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area." The evidence does not support a finding that the amendment will result in the poorly planned conversion of rural lands, or the creation of a land use that is not functionally related to land uses that predominate the adjacent area. Given these considerations, Petitioner has not proven beyond fair debate that the plan amendment will result in urban sprawl, or that the County lacked adequate data and analyses related to urban sprawl to support the change in the land use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004.
The Issue Whether the Florida Department of Transportation (FDOT) properly denied application(s) for an advertising sign permit.
Findings Of Fact On September 27, 2005, Petitioner Lamar submitted two permit applications (Nos. 55595 and 55596) to FDOT for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 85 (SR 85), 200 feet (or .042 miles) south of Barnes Road in Okaloosa County, Florida. SR 85 is a Federal-aid primary highway. (See Stipulated Facts 1 and 4.) The proposed sign structures met the size, height, and spacing requirements of Section 479.07, Florida Statutes. (See Stipulated Fact 3.) The proposed sign location is in an unincorporated area of Okaloosa County, Florida. (See Stipulated Fact 5.) Okaloosa County is the only local entity involved herein. The 42.5 acre parcel of land for the proposed billboard has significant frontage on SR 85, north of Crestview, Okaloosa County. A residence is located on a portion of the parcel. The permit application form used by Petitioner was composed and authorized by FDOT. Petitioner's submitted application was complete, and the appropriate fee was paid to FDOT. (See Stipulated Fact 2.) Upon request, FDOT provides a published "Instruction" pamphlet to assist applicants for outdoor advertising sign permits. Pages 12-13 thereof provide, in pertinent part, as follows: Land Use/Zoning: Outdoor advertising signs must be located in areas where the land use category allows properties which lie within 660 feet of the controlled road and which are within the contiguous land use designation area to be developed with primarily commercial or industrial uses. This information is found in the Land Development Regulations and on the Future Land Use Map of the City or County’s Comprehensive Growth Management Plan. The City or County or other local government must certify that the current zoning (Land Development Regulations) and the Future Land Use Map designation allow for commercial/industrial uses and that outdoor advertising signs are allowed for that designation. When the Land Development Regulations [zoning] or the Future Land Use Map do not specifically designate the parcel as commercial or industrial, but allow for multiple uses on the parcel, including commercial or industrial, a “use test” will be employed to determine whether an outdoor advertising permit may be issued. The use test requires that there be a minimum of three (3) conforming businesses within 1600 feet of each other, and that the sign be on the same side of the highway and within 800 feet of one of the businesses. The Department will not approve an outdoor advertising sign permit when local regulations prohibit outdoor advertising at the proposed location. (Emphasis supplied.) In preparation of Petitioner’s application(s), Chad Pickens, Petitioner’s Lease Manager, read FDOT’s Instruction pamphlet as guaranteeing Petitioner a “use test” if either the County land use map or the zoning for this parcel provided for mixed or multiple uses. He conducted extensive site location and ownership searches; made contacts with the potential lessor; submitted photographs of three businesses within 1600 feet of the proposed outdoor advertising sign location; filled out the permit application; proceeded to the appropriate Okaloosa County government officials for County approval; surveyed and staked out the proposed outdoor advertising sign location; and took photographs of the proposed site. He then submitted this information on FDOT-approved forms, along with a letter of authorization and the application fee. Petitioner Lamar leased the property site from the owner, with no lease payments due from Petitioner to the landowner unless FDOT approved its sign permits. At the time of the application, the three commercial businesses closest to the proposed sign location were: Dogwood Veterinary Clinic - approximately 118 feet south of the proposed sign site. This business specializes in treating house pets. The clinic makes no farm calls, but horses may be treated if brought into the clinic. This business also contains a retail outlet; Billy's Trade Store, approximately 463 feet south of the proposed sign site, is a convenience store; and Plantation Farms Pet Grooming, approximately 780 feet northeast of the proposed sign site. This business, in addition to retail sales of pet items and food, incorporates a section for the grooming and boarding of household pets. This business does not handle livestock. (See Stipulated Fact 9.) These three business establishments, submitted by Petitioner for FDOT’s application of a "use test," were businesses one could actually walk into and purchase goods or services. In addition to information regarding the proposed sign site, the proposed construction on the site, and where the proposed construction was to occur, the permit application required the applicant to secure Okaloosa County’s local certification of the proposed site’s future land use designation and its current zoning, which Petitioner did. Although FDOT requires that local government entities sign off on advertising sign applications to FDOT, the State Agency does not rubber stamp those approvals. Ultimately, FDOT administers State statutes and regulations in conjunction with its Federal agreement. The State is not bound by the County’s permitting of signs. In January, 1972, the State of Florida entered into an agreement with the Federal Highway Administration, in which the State agreed to implement and carry out the provisions of Section 131 of Title 23, United States Code (1965), commonly referred to as "The Highway Beautification Act." Through this agreement, Florida agreed to limit the permitting of outdoor advertising signs adjacent (within six hundred sixty feet of the nearest edge of right-of-way) to Interstate or Federal-aid primary highway systems, to areas which are zoned industrial or commercial or are located in unzoned commercial or industrial areas. Failure of FDOT to comply with the terms of this agreement could result in a loss of 10 percent of federal-aid highway funds. Lynn Holschuh, FDOT Outdoor Advertising Administrator, testified that since the January 1972, agreement with the Federal Department of Transportation, Florida local governments have been required to “zone” all property. Therefore, the 1972 Agreement’s use of the term, “unzoned commercial or industrial areas,” is an anachronism, because all Florida property should now be zoned. Still, the term remains in the Florida Statutes, and FDOT uses this term to grapple with areas where specific land use is not very well defined. Zoning designations arise from county land development regulations, i.e. zoning ordinances. Future land use designations come from a Land Use Plan, adopted by the local entity or entities, pursuant to Chapter 163, Florida Statutes, and placed on a future land use map. The proposed sign location is on a parcel with a land use designation of “Agricultural 1” (AA1). (See Stipulated Fact 6.) In other words, the parcel is zoned for agriculture. Okaloosa County Code 8.02.02 provides that permanent off-site outdoor advertising signs are a permitted use within agricultural areas. (See Stipulated Fact 7.) Counties may allow off-site advertising along county roads, but interstate and federal primary-aid highways, such as SR 85, are within FDOT’s jurisdiction. The applicable Future Land Use Map designates the proposed site for “rural mixed land use” (RMU). (See Stipulated Fact 8.) This multiple use future land use map designation includes residential and non-residential uses. Non-residential uses may include commercial or business uses, although the parcel being designated “rural” suggests otherwise. There is no evidence herein that the terms used in the current zoning or on the future land use map do not comport with the same or similar terms used in Chapter 163, Florida Statutes, or in 23 C.F.R. Section 750.703(a) or 750.708. At all times material, Billy Wayne Strickland, Florida Department of Transportation Outdoor Advertising Senior Agent, processed all outdoor advertising applications, statewide, on behalf of FDOT. He testified that if the current land development regulations (current zoning) and the future land use designation (future land use map) differ, FDOT considers both. If the current zoning and future land use map are both a "mixed use" designation, FDOT performs its own use test, sometimes delegated to an outside consultant. Ms. Holschuh testified that “agriculture” is a “rather specific” zoning term/designation. However, if a zoning category authorizes more than one use, FDOT looks at the current primary uses of the parcel. FDOT’s intent is not to go by the label that has been applied to the zoning category, but “to go beyond the label to determine whether or not the area really has the characteristics of a commercial or an industrial area,” and that with regard to the characteristics of commercial zoning, the use test would be employed to determine if there were bona fide commercial or industrial activities within the specified footage of a proposed sign location. In processing the application(s) in this case, Mr. Strickland accepted the future land use designation “AA1”, for “agricultural,” as certified by Planner Tim Durbin on behalf of Okaloosa County. He also researched Okaloosa County’s land development regulations, which described the permitted uses for property designated "agricultural." The Okaloosa County Land Development Code specifically designated three zoning categories as “Commercial.” They are “Business Retail,” Business General,” and “Business Tourism”. In the Code, commercially zoned areas, under the categories of "Business Retail" and "Business General," states: "[t]his is a Commercial (C) and Mixed Use Development (MU) Future Land Use Map Category." Under the category of "Business Tourism," the Code states: "[t]his is a High Density Residential (HDR), a Commercial (C), and a Mixed Use Development (MU) Future Land Use Map Category." Each of these business categories allows for traditional commercial uses such as retail stores, filling stations, banks, restaurants and mini- warehouses. The Okaloosa County Land Development Code specifically designated two zoning categories as “Industrial.” They are “Protected Industrial Districts” and “Airport Industrial Park Districts.” The Okaloosa County Land Development Code, under “Industrial” uses, has zoning categories of "Protected Industrial Districts" and "Airport Industrial Park Districts." The Code provides: "[t]his is an Industrial (I) Future Land Use Map Category." No similar reference to either “commercial” or “industrial” zoning is made under the zoning for “agricultural” areas. The agricultural zoning does not mention “filling stations.” The Okaloosa County Land Development Code lists the following (with some restrictions not material to these proceedings) in areas zoned “agricultural”: Permitted Principal Uses and Structures: -Dwellings -Commercial and non commercial agricultural [structures] -Sawmills -Places of worship, schools, publicly owned and operated community structures and land, nursing homes, charitable or philanthropic institutions; public or private golf courses; public lands; public or private cemeteries, private lodges and fraternal orders. -Privately operated day nurseries, pre- schools, and kindergartens. -Private airstrips -Private Airports -Public or private fishing clubs, and other similar enterprises. -Recreational areas for public use, campgrounds, travel trailer parks, including golf driving ranges, swimming pools, fishing lakes, and similar recreation uses. -Public or private stables -Commercial kennels and the raising of other small animals for sale -Community residential homes -Radio, television and commercial towers and antennas. -Terminals for petroleum products -Public Utility Structures -Municipal solid waste transfer stations and recycling facilities. Permitted Accessory Uses and Structures: Uses and structures which are customarily accessory and clearly incidental and subordinate to permitted or permissible uses and structures. Home Occupations. Special Exception Uses and Structures: Activities that are agricultural or support agricultural activities and are in keeping with the rural character of the area Public or privately operated gun clubs Borrow Pits Construction and Demolition Debris landfills Prohibited Uses and Structures: Any use or structure not of a character indicated under permitted accessory uses and structures, or permitted as a special exception. Class I, II and III landfills are prohibited, along with other types of solid waste disposal facilities except as identified in Permitted Uses and Special Exceptions. [Boldface in original; underlining supplied] Mr. Strickland opined that a terminal for storing petroleum products, transported to that location in tanker trucks, for use by machinery on a farm, which use is allowed by the County’s zoning code to be located on land zoned agricultural (see Finding of Fact 29), would not be the same as a gas/filling station for cars, permitted under the County’s commercial or industrial classification. Mr. Strickland’s interpretation is reasonable, and it was not credibly refuted by Mr. Durbin, the County’s planner, whose testimony that the County would allow a filling station on the parcel in question did not comport with the clear designations under the County’s zoning. (See Findings of Fact 24-29 and 35-36.) In processing the applications in this case, Mr. Strickland reasonably interpreted the current zoning to permit only commercial uses "tied to agriculture" on this parcel. Mr. Strickland also used the Okaloosa County Tax Appraiser’s records. The County Appraiser listed the parcel whereon the signs were intended to be erected as improved agricultural land containing a single family dwelling for which a homestead exemption was taken/granted. A residential use clearly is not a commercial use. Mr. Strickland took this to mean that the “rural mixed use” for that parcel implied a “residential” use, as opposed to a “non-residential” and potentially commercial use, under the RMU designation on the future land use map. FDOT never permits billboards on residential property unless the parcel is currently zoned commercial and the parcel merely contains a private residence that has been grandfathered- in. On October 18, 2005, FDOT, through Mr. Strickland, issued a Notice of Denied Application stating: Location is not permittable under land use designations of the site [s. 479.111(2), FS] Location does not qualify as unzoned commercial/industrial area [s. 479.01(23), FS] At the same time, FDOT returned Petitioner’s application fee checks. (See Stipulated Fact 10.) At hearing, County Planner, Tim Durbin, testified that based upon Okaloosa County’s current zoning and future land use, the proposed sign site met Okaloosa County standards and would support an outdoor advertising sign. He further testified that the County no longer considers "AA1”, which once referred to parcel size, "to have any significance,” and that the County plans, in the future, “to remove that designation from its Land Development Code.” According to Mr. Durbin, the County now considers all agricultural land to be "AA." However, as of the date of hearing, more than a year after the sign permit application review by FDOT, the County still has not changed its AA1 category. According to Mr. Durbin, Okaloosa County currently would permit the following non-residential uses of the parcel at issue: "small scale agricultural, civil uses of churches and houses of worship, public or private primary or secondary schools, small scale neighborhood commercial or business uses, general commercial uses. Small scale neighborhood commercial and business includes neighborhood-serving offices, neighborhood-serving retail activities.” He opined that any classification that contains “residential” and “non-residential” uses, as do both the AA1 zoning category and the land use map ”RMU-rural mixed uses” designation, may contain commercial projects within the “non-residential” areas. He equated “filling stations” with “terminals for petroleum products." Herein, because the zoning and land-use map designations were not identical, Mr. Strickland did not consider, in making his decision to deny the sign permit, the three businesses listed near the parcel. He did try to discover how the actual parcel in question was currently regarded locally. In doing so, he used reasonable methods. He denied the sign application(s) on the basis of the future land use designation (rural mixed use-residential) and the agricultural zoning current when these applications were submitted and considered between September 27, 2005, and October 18, 2005, (AA1-agricultural). Petitioner has not demonstrated that any change in the zoning or land use designation has occurred since that time. However, when asked at hearing how he would consider those three nearby businesses (a veterinary, a convenience store, and a pet groomer), which had been submitted for a use test, Mr. Strickland testified that he would consider the veterinary and the store to be commercial uses and would consider Plantation Farm Pet Grooming to be not commercial because it contained a family residence with a homestead exemption. Petitioner did not refute that the pet groomer’s building primarily constitutes a residential use.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying the October 18, 2005, denial of sign application. DONE AND ENTERED this 4th day of April, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2007.
The Issue The issue in this case is whether comprehensive plan future land use map amendment (FLUMA) 07-L25, adopted by Marion County Ordinance 07-31 on November 20, 2007, which changed the FLUM designation on 378 acres of Urban Reserve and on 17.83 acres of Rural Land to Medium Density Residential, is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The parcel that is the subject of the FLUMA at issue (the Property) is approximately 395.83 acres in size. The existing FLUM designation for 378 acres of the Property is Urban Reserve, and the remaining 17.3 acres are designated as Rural Land. Both designations allow a maximum of 1 dwelling unit per 10 acres. The FLUMA would change the designation of the entire parcel to Medium Density Residential (MDR). MDR generally allows up to four dwelling units per acre. However, Future Land Use Element (FLUE) Policy 12.5.k, which also was adopted as part of County Ordinance 07-31, limits the maximum density on the Property to two dwelling units per acre. FLUE Policy 12.5.k also requires: that development on the Property "be served by central potable water and central sanitary sewer services available concurrent with development" and be a Planned Unit Development "to address site design, buffering, and access issues"; and that NW 90th Avenue be reconstructed from U.S. Highway 27 north to the north-eastern corner of the Property and that all traffic facility improvements needed at the NW 90th Avenue/U.S. 27 intersection, including signalization if approved by the Florida Department of Transportation, be constructed prior to the issuance of any certificates of occupancy for the Property. Finally, with respect to the 17.3 acres formerly designated as Rural Land, FLUE Policy 12.5.k defers compliance with the County's Transfer of Development Rights (TDR) Program until application for assignment of a zoning classification for the land. Petitioners' Challenge Intervenors own the Property. Petitioners own property nearby in Marion County. Intervenors and Petitioners commented on the proposed FLUMA between transmittal to DCA and adoption by the County. Petitioners contend: The FLUMA is not consistent with the stormwater drainage, retention, and management policies contained in Policies 1.1.a. and 1.1.d. of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Comprehensive Plan. MDR is not suitable or compatible with existing and planned development in the immediate vicinity, as required by FLUE Policy 12.3 of the Comprehensive Plan. The Board of County Commissioners failed to evaluate the FLUMA's impact on “the need for the change” as provided in FLUE Policy 12.3 of the Comprehensive Plan. The FLUMA fails to take into account its impact on “water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding,” as required by Section 187.201(15)(b)6., Florida Statutes. The FLUMA is not consistent with Transportation Policy 1.0 of the Comprehensive Plan, which states: "Marion County shall create and maintain transportation facilities that operate in a safe and efficient manner within an established level of service." The FLUMA is not consistent with the State's Comprehensive Plan in that it does not "ensure that new development is compatible with existing local and regional water supplies," as required by Section 187.201(7)(b)5., Florida Statutes. The FLUMA does not direct development away from areas without sediment cover that is adequate to protect the Floridan Aquifer and does not prohibit non-residential uses within 200 feet of a sinkhole, solution channel, or other karst feature, in violation of FLUE Policy 4.2 of the Comprehensive Plan. The FLUMA does not comply with Section 187.201(7), Florida Statutes, concerning the protection of surface and ground water quality in the State. Recharge Sub-Element Policy 1.1.a. and d. Policy 1.1 of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Marion County Comprehensive Plan provides in part: The County’s land development regulations shall implement the following guidelines for stormwater management consistent with accepted engineering practices by October 1, 2007: Stormwater retention/detention basin depth will be consistent with the water management district's storm water requirements for Karst Sensitive Areas so that sufficient filtration of bacteria and other pollutants will occur. Avoidance of basin collapse due to excessive hydrostatic pressure in Karst Sensitive Areas shall be given special consideration. * * * d. Require the use of swales and drainage easements, particularly for single family residential development in Karst Sensitive Areas. These are requirements for land development regulations (LDRs); they do not apply to comprehensive plan amendments. In any event, the evidence did not prove that the site is unsuitable for the density allowed under the adopted FLUMA due to karst features. The admissible evidence presented by Petitioners regarding stormwater management in karst topography generally related to flooding problems on the property contiguous to the Property, and to a karst feature referred to as the “63rd Street Sinkhole,” which is located in the general vicinity of the Property. Fay Baird, an expert hydrologist called by Petitioners, testified that the 63rd Street Sinkhole allows stormwater run- off to enter the upper aquifer. Ms. Baird testified generally of the problems and concerns regarding development and stormwater management systems in karst topography. She testified that the Property should be properly inventoried, that specific karst features should be identified, and that any stormwater system designed or developed should take into account karst features to protect against groundwater contamination and flooding. She testified that she had not been on the Property, had not seen or reviewed core borings or other data to determine the depth and nature of the sub-surface, and was not in a position to provide opinions as to whether or not a particular stormwater management system would or could adequately protect against her concerns. Intervenors’ expert, Richard Busche, testified that a stormwater management plan like the one recommended by Ms. Baird was being developed. Compatibility under FLUE Policy 12.3 FLUE Policy 12.3 provides in pertinent part: Before approval of a future land use amendment, the applicant shall demonstrate that the proposed future land use is suitable, and the County will review, and make a determination that the proposed land use is compatible with existing and planned development in the immediate vicinity . . . . Petitioners argued that the proposed MDR development of the Property is incompatible with surrounding agricultural uses. Actually, the Property is surrounded by a mixture of agricultural and residential uses, including residential subdivisions, a golf course, and scattered large-lot residential and equestrian uses. The properties immediately to the south and east of the Property are developed residential properties and are designated MDR. Before the FLUMA, most of the Property was designated Urban Reserve under the County's Comprehensive Plan. Such land "provides for expansion of an Urban Area in a timely manner." FLUE Policies 1.24.B and 2.18. "For an Urban Reserve Area to be designated an Urban Area, it must be compact and contiguous to an existing Urban Area, and central water and sewer must be provided concurrent with development within the expanded area." FLUE Policy 2.18. The Property is compact and is contiguous to existing Urban Area designated MDR. This indicates that the County already has planned for timely conversion of the Urban Reserve land on the Property to urban uses, including MDR. It also means that the County already has determined that at least certain urban uses, including MDR, are compatible with adjacent agricultural uses. The Property is in the receiving area under the County's Farmland Preservation Policy and TDR Program in FLUE Objectives 13.0 and 13.01 and the policies under those objectives. This means that the County already has determined that residential density can be transferred to the Property from the Farmland Preservation sending areas to increase residential density up to one dwelling unit per acre. See FLUE Policy 13.6. This would constitute Low Density Residential, which is an urban use under the County's Comprehensive Plan. See FLUE Policy 1.24.A. By establishing the Farmland Preservation Policy and TDR Programs, the County already has determined that Low Density Residential is compatible with adjacent Rural Land. In addition, Low Density Residential clearly is compatible with MDR. Although not raised in the Petition, Petitioners argued that the Urban Reserve and Farmland Preservation eastern boundary was improperly moved west to NW 90th Avenue. However, that change was made prior to the adoption of Ordinance 07-31 and the FLUMA at issue in this case and is not a proper subject of this proceeding. Demonstration of Need under FLUE Policies 13.2 and 12.3 FLUE Policy 13.2 provides: The Transfer of Development Rights program shall be the required method for increasing density within receiving areas, unless, through the normal Comprehensive Plan Amendment cycle, an applicant can both justify and demonstrate a need for a Future Land Use Map (FLUM) amendment. FLUE Policy 12.3 provides: Before approval of a future land use amendment, . . . the County . . . shall evaluate its impact on: The need for the change; The availability of facilities and services; The future land use balance; and The prevention of urban sprawl as defined by Rule 9J-5.006(5)(g), Florida Administrative Code. The evidence proved that the County interprets FLUE Policy 12.3 to require need and future land use balance to be assessed within the planning districts it has established. There is no need for additional MDR in the County's Planning District 5, where the Property is located. To accommodate the projected population increase in Planning District 5 by 2010, which is the planning horizon for the County’s Comprehensive Plan, an additional 644 dwelling units are needed. There are 1,893 vacant acres of MDR available in Planning District 5. At four units per acre allowed in MDR, the County has an available supply of 7,572 MDR dwelling units in Planning District 5. In the absence of a need in Planning District 5, the County relied on a need demonstration prepared for the Intervenors by Fishkind and Associates.6 Besides being a County-wide analysis instead of a planning district analysis, the Fishkind analysis assumed a planning horizon of 2015, rather than the 2010 horizon established in the Comprehensive Plan. Finally, the Fishkind analysis applied an allocation factor to the total projected need for residential use, most of which already is supplied, resulting in a projection of residential far in excess of the incremental need for additional residential land by 2015, much less by 2010. The result of the Fishkind approach was to allocate enough land for residential use to meet the County-wide projected incremental need for additional residential land use for approximately 45 years, which is five times the calculated incremental need for 2015. Even assuming that a County-wide demonstration of need complied with Marion County's Comprehensive Plan, this is much too high an allocation ratio to use to meet the incremental need projected for a 2015 plan, much less for a 2010 plan. The expert for Intervenors, Stanley Geberer, defended the Fishkind analysis in part by stating that it was comparable to demonstrations of need accepted by DCA in other cases. However, there was no evidence that the facts of those other cases were comparable to the facts of this case. Mr. Geberer also asserted that holding the County to its 2010 planning horizon would make it impossible for the County to plan for the future. However, nothing prevents the County from revising its Comprehensive Plan to plan comprehensively for a longer timeframe. There was no evidence of any other circumstances that would demonstrate a need for the FLUMA at issue in this case. State Comprehensive Plan Policy 187.201(15)(b)6. Petitioners did not prove that the FLUMA fails to take into account its impact on "water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding." To the contrary, the evidence was that those items were taken into account as part of the FLUMA. (However, as to the FLUMA's impact on the availability of land to meet demands, see "Demonstration of Need under FLUE Policies 13.2 and 12.3," supra.) Transportation Element Objective 1.0 Transportation Element Objective 1.0 provides: Marion County shall create and maintain transportation facilities that operate in an efficient and safe manner within established levels of service. Petitioners presented no expert testimony or admissible evidence that the FLUMA will change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. Intervenors presented the testimony of Jonathan Thigpen, an expert traffic engineer, who prepared and submitted to the County a Traffic Impact Study and testified that the FLUMA would not change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. The ultimate need for transportation improvement, such as turn lanes and traffic lights to mitigate the impacts of development under the FLUMA, will be determined at later stages of development. Petitioners suggested that the FLUMA will result in delays caused by additional traffic, frustrate drivers waiting to turn east on U.S. 27, and induce large numbers of them to seek an alternative route to the north through agricultural areas, some of which have inadequate slag roads. However, Petitioners failed to prove that this result is likely. State Comprehensive Plan Policy 187.201(7)(b)5 Petitioners presented no evidence that the designation of MDR on the Property is incompatible with existing local and regional water supplies. The evidence was that adequate local and regional water supplies exist. Even if they did not exist, the consequence would be less development than the maximum allowed by the FLUMA. FLUE Policy 4.2 FLUE Policy 4.2 provides in pertinent part: In order to minimize the adverse impacts of development on recharge quality and quantity in high recharge Karst sensitive and springs protection areas, design standards for all development shall be required and defined in the LDRs to address, at a minimum, the following: * * * f. Directing development away from areas with sediment cover that is inadequate to protect the Floridian [sic] Aquifer. * * * h. Prohibiting nonresidential uses within 200 feet of a sinkhole, solution channel, or other Karst feature. This policy sets forth requirements for the content of LDRs, not FLUMAs. Petitioners presented no evidence that sediment cover on the Property is inadequate to protect the Floridan Aquifer or that any non-residential uses would be constructed within 200 feet of a sinkhole, solution channel, or other karst feature under the FLUMA. Marion County has adopted amendments to its Comprehensive Plan to protect springs and karst features.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department determine the FLUMA at issue in this case to be not "in compliance" and take further action as required by Section 163.3184(9)(b), Florida Statutes. DONE AND ENTERED this 4th day of February, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2009.
The Issue Whether Palm Beach County Ordinance 2018-031 (“Ordinance”) is internally inconsistent with Palm Beach County’s 1989 Comprehensive Plan (“Comprehensive Plan”), and is, therefore, not “in compliance” with section 163.3177(2), Florida Statutes (2018); and whether the Ordinance fails to establish meaningful and predictable standards for the use and development of land or for the content of more detailed land development and use regulations as required by section 163.3177(1), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Petitioner is a Florida limited liability corporation. Petitioner submitted written comments, recommendations, or objections to the County on October 30, 2018, during the period of time between the transmittal hearing and the adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167. The County exercises land use planning and zoning authority throughout unincorporated Palm Beach County. The Ordinance is a countywide, County-initiated Comprehensive Plan Text Amendment that would revise the FLUE to modify provisions for residential future land use designations. On July 13, 2018, the County Planning Commission conducted a properly noticed public hearing to review the proposed Plan Amendment and made recommendations to the Palm Beach County Board of County Commissioners (the “Board”) pursuant to chapter 163, Part II. One member of the public spoke in support of the amendment. The staff report that contained staff analysis regarding consistency with the Comprehensive Plan was made available to the Planning Commission prior to its deliberation. On July 20, 2019, Petitioner served a letter regarding the proposed Plan Amendment on Melissa McKinlay, Mayor and member of the Board. July 20, 2019, was three days prior to the date of the transmittal hearing for the proposed Plan Amendment. There was no evidence that the comments were received by Respondent on or after the date of the transmittal hearing. The July 20, 2019, letter stated that Petitioner “represents property owners located within the Palm Beach Farms plat in communities known as the Pioneer Road Neighborhood, the Gun Club Road Neighborhood, Monmouth Estates, and the Ranchette Road Neighborhood . . . . [Petitioner] has been active since early 2011 seeking to preserve the rural character of these communities.” Despite the foregoing, there was no competent substantial evidence adduced at the hearing to substantiate that Petitioner represented owners of property in any neighborhood other than the Pioneer Road neighborhood. On July 23, 2018, the Board conducted a public hearing to review the recommendations of the Planning Commission, and authorized transmittal of the proposed Plan Amendment to the state land planning agency and review agencies pursuant to chapter 163, Part II. The Board further directed staff to work with residents in the rural enclaves and to return with stronger language at the adoption hearing. Ten members of the public spoke in support of the Plan Amendment. There was no evidence that Petitioner, or any other person, spoke or presented written comments at the transmittal hearing in opposition to the Plan Amendment. The staff report and analysis regarding consistency with the Comprehensive Plan was made available to the Board prior to its deliberation. The state land planning agency issued a letter dated August 31, 2018, stating that the Agency “identified no comment related to important state resources and facilities within the Department’s authorized scope of review that would be adversely impacted by the amendment if adopted.” There were no other state agency comments received regarding the Plan Amendment. Subsequent to the transmittal public hearing, County staff worked with representatives from the Pioneer Road neighborhood and revised the language of the Residential Future Land Use amendment. On October 29, 2018, Petitioner sent a letter regarding the proposed Plan Amendment to Mayor McKinlay, service of which was apparently accepted by Denise Neiman, County Attorney. The evidence suggests that service was made on October 30, 2018, prior to the adoption of the Plan Amendment. On October 31, 2018, the Board adopted the Ordinance. The staff report and analysis regarding consistency with the Comprehensive Plan was made available to the Board prior to its deliberation. Five members of the public spoke in support of the Plan Amendment. There was no evidence that Petitioner, or any other person, spoke or presented written comments in opposition to the Plan Amendment, other than the October 29, 2018, letter described above. Existing Conditions The Pioneer Road neighborhood is approximately 550 acres of mostly Rural Residential property, interspersed with properties used for non-intensive commercial uses, such as plant nurseries and landscaping services. The Pioneer Road neighborhood contains between 175 and 220 developed home sites, many of which engage in light-scale personal agricultural uses (e.g., fruit trees, gardens, chickens, etc.). The neighborhood is served by private potable water wells and septic tanks. The Pioneer Road Area includes the Pioneer Road neighborhood, the Gun Club Road neighborhood, and surrounding low density Rural Residential enclave neighborhoods, and is but one of several neighborhood areas potentially affected by the Plan Amendment. Other rural neighborhood areas affected by the Ordinance include the State Road 7/Lantana Road Area and the Hyopluxo Road Area, each of which include a number of rural enclaves. The Plan Amendment The Plan Amendment is intended to revise the FLUE to modify provisions for the Future Residential Land Use designations. The Amendment, as described in the staff Final Report, is designed to: Recognize that there are Rural Residential areas within the Urban Suburban Tier that provide a valuable contribution to the housing diversity and lifestyle choices in the County. Establish that Agricultural Residential zoning is consistent with the urban residential future land use designations in the County. Recognize and support agricultural operations within residential future land use designations, including supporting the cultivation of agriculture and keeping of livestock. Provide additional specificity on the non- residential use location requirements in residential land use designations to ensure protection of residential neighborhoods. Allow Residential Multifamily Zoning on parcels with Medium Residential, 5 units per acre, future land use for properties using the Transfer of Development Rights or Workforce Housing Programs. The Plan Amendment applies countywide, and not to any specific neighborhood or property. Current neighborhood plans are considered when there are site-specific amendments. As related to Rural Residential enclaves, the Plan Amendment “will establish policy statements to direct growth away from those areas, or towards their edges,” and “will establish that the AR Zoning district is consistent with the urban residential zoning districts.” The Plan Amendment is also designed to “[r]ecognize and support agricultural operations within residential future land use designations, . . . including in the Urban Suburban Tier,” and restrict commercial vehicle activity and more intensive non-residential uses in residentially zoned areas except along major thoroughfares. Petitioner’s Challenge In its Amended Petition, Petitioner stated that the following amendments to the Comprehensive Plan “appear to recognize the existence and offer protection for the continuation of these Rural Residential Enclaves”: REVISE Policy 2.2.1-p: Rural Enclaves in Urban Service Area Application of Rural Standards. The County recognizes that there are long established rural residential enclave communities and homesteads in locations within the Urban/Suburban Tier that have Low Residential future land use designation. The County supports the continuation of those rural areas in order to encourage a high quality of life and lifestyle choices for County residents. In addition, within these areas In the Urban/Suburban Tier, the County may apply the ULDC standards for rural residential development as follows: in low density areas in Urban Residential future land use categories; on parcels presently used for agricultural purposes; or on parcels with a Special Agricultural future land use category. NEW Policy 2.2.1-w: The County shall adopt specific overlays in the Comprehensive Plan and/or Unified Land Development Code to protect the character of rural enclaves identified though the neighborhood planning process.[2/] Comprehensive Plan Policy 2.2.1-j, which is unchanged by the Plan Amendment, provides that: Table 2.2.1-j.1 establishes the consistent residential zoning and planned development district for the Residential Future Land Use Designations. In addition, within the Urban/Suburban Tier of the Glades Tier, the Agricultural Residential and Agricultural Production zoning districts are consistent with all residential future land use designations. As amended, Table 2.2.1-j.1 provides as follows: Table 2.2.1-j.1 Residential Future Land Use - Zoning Consistency1 Future Land Use Designation Consistent Zoning Zoning District Planned Development Agricultural Reserve AGR AGR-PUD Rural Residential AR4, RE5 RR-PUD, MHPD, RVPD Western Communities Residential AR PUD Low Residential AR4, RE, RT, RTS, RS PUD, TND, MHPD Medium Residential AR4, RE, RT, RS, RTU, RM/RH2 PUD, TND, MHPD High Residential AR4, RE, RT, RS, RM, RH PUD, TND, MHPD Congregate Living Residential3 RM PUD, TND, TMD, MUPD, MXPD3 The disputes raised in the Amended Petition were in “[t]he footnotes and caveats” to Table 2.2.1-j.1, which “will permit significant increases in future density, intensity and designs in a manner that will permanently and negatively alter the historic rural and unique character of these neighborhoods.” As pled, “the following three provisions completely undermine any effort to preserve the Rural Residential Enclaves”: REVISE Table 2.2.1-j.1 Residential Future Land Use – Zoning Consistency: Note No. 2 (RM District): The RM district is consistent with the MR-5 designation only for those areas properties that were zoned RM or RH prior to the Plan’s August 31, 1989 adoption or are 3+ acres utilizing the Transfer of Development Rights and/or Workforce Housing Program. REVISE Table 2.2.1-j.1 Residential Future Land Use – Zoning Consistency: Note No. 4 (AR Zoning) A lot with AR that was legally subdivided shall be considered a conforming lot. Properties with AR zoning with a residential future land use designation in the Urban/Suburban Tier are not required to rezone when subdividing for a residential use provided that the newly subdivided density is a maximum of 1 unit per acre, or when developing a non-residential use that is allowed in AR. Policy 2.2.1-n Non-Residential Uses Criteria. NEW Subsection (5). More intense non-residential uses may be allowed in residential zoning districts along major thoroughfares and roadways that are not residential streets. In addition to the foregoing, Petitioner alleged that the following deletion renders the Ordinance inconsistent with the Comprehensive Plan, and inconsistent with the Plan Amendment: 4. DELETE Language from FLUA Regulation Section Land Development Regulations in the Urban Service Area, Urban/Suburban Tier. The County may apply the ULDC standards for rural residential areas in the Urban/Suburban Tier in low density areas in the Residential future land use designations which are used for agricultural purposes, or on parcels with a Special Agricultural (SA) land use category. Areas within the Urban Service Area/Suburban Tier may be suitable for agricultural use throughout the implementation period of the Plan. It is not the intent of the Plan to encourage premature urbanization of these areas; however, agricultural uses are expected to convert to other uses consistent with the Plan when those agricultural uses are no longer economically viable. Agricultural uses permitted in the residential land use designation must be compatible with the protection of the residential lifestyle and quality of life. Table 2.2.1-j.1, footnote 2 In its Amended Petition, Petitioner alleged that revised Table 2.2.1-j.l, footnote 2, is inconsistent with new Policies 2.2.1-w and 2.2.1-p of the Plan Amendment. However, in his testimony, Mr. Crosby focused exclusively on the alleged inconsistency with Policy 2.2.1-w, not mentioning or otherwise offering evidence regarding inconsistency with Policy 2.2.1-p. As amended, revised Table 2.2.1-j.l, footnote 2, applies only to “RM/RH” zoning districts, and provides that “[t]he RM district is consistent with the MR-5 [Medium Residential/5 units per acre] designation only for those properties that were zoned RM [Residential Multifamily] or RH [Multifamily Residential High Density] prior to the Plan’s August 31, 1989 adoption, or when properties of 3 or more acres in size within an MR-5 designation qualify for a higher density through the Transfer of Development Rights and/or Workforce Housing Program density bonus programs.” The plain language of revised Table 2.2.1-j.l, footnote 2, establishes that it applies only to the MR-5 future land use designation, and only to properties that were either zoned as RM or RH before August 31, 1989, or that qualify for the listed density bonus programs. The three-acre threshold was established to prevent single lots in established MR-5 neighborhoods from increasing density out of character with the neighborhood. Prior to the amendment of footnote 2, if a property owner proposed new development on property with an MR-5 land-use designation and more than three acres of land and proposed to utilize Transfer of Development Rights or the Workforce Housing Program for a density increase, the property owner was limited to a Planned Unit Development (PUD). The amendment allows the application of the density bonus in an RM zoning district. Revised Table 2.2.1-j.l, footnote 2, is designed to foster infill development on MR-5 designated parcels that may be too small to be developed as a PUD. Furthermore, footnote 2 does not bypass the requirements of the Land Development Code Article 5 Density Bonus Programs, and applicants are still required to comply with those application review and approval processes. Finally, Petitioner’s expressed concern is the effect of the Plan Amendment on AR designated rural enclave communities such as the Pioneer Road neighborhood. Amended footnote 2 does not apply to AR zoning districts. Petitioner failed to prove, beyond fair debate, that revised Table 2.2.1-j.l, footnote 2, is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w, or that it improperly increases density. Furthermore, Petitioner, having failed to offer any evidence as to revised Table 2.2.1-j.l, footnote 2’s, inconsistency with revised Table 2.2.1-p, failed to meet its burden with regard to that element of its Amended Petition. Table 2.2.1-j.1, footnote 4 In its Amended Petition, Petitioner alleged that revised Table 2.2.1-j.l, footnote 4, is inconsistent with new Policies 2.2.1-w and 2.2.1-p of the Plan Amendment. However, in his testimony, Mr. Crosby focused exclusively on the alleged inconsistency with Policy 2.2.1-w, not mentioning or otherwise offering evidence regarding inconsistency with Policy 2.2.1-p. Petitioner argues that the footnote allows property owners to immediately subdivide their property to one unit per acre without review, rezoning, or going through the typical process if they are in the AR zoning district. As to the alleged inconsistency with new Policy 2.2.1-w, neither footnote 4, nor any other provision of the Plan Amendment, creates a specific overlay that can be compared for consistency with the authority for, but not the implementation of, the creation of future overlays. Petitioner failed to demonstrate, through competent, substantial evidence, that revised Table 2.2.1-j.l, footnote 4, is inconsistent with new Policy 2.2.1-w of the Plan Amendment. As to the alleged inconsistency between revised Table 2.2.1-j.l, footnote 4, and new Policy 2.2.1-p, the evidence demonstrated that the County implemented the Managed Growth Tier System to protect viable existing neighborhoods and communities, and to direct the location and timing of future development within five geographically specific Tiers -- Urban/Suburban, Exurban, Rural, Agricultural Reserve, and the Glades. Table 2.2.1-g.l of the FLUE establishes maximum density for Residential Future Land Use Designations. The lowest density designation in the Urban/Suburban Tier is Low Residential, one unit per acre (LR-1) designation, which allows up to one unit per acre. According to existing Table 2.2.1-j.l, the AR zoning district is not currently consistent with Low Residential (LR), Medium Residential (MR), and High Residential (HR) Future Land Use Designations. As set forth in Table III.C, LR, MR, and HR Future Land Use Designations are allowed within the Urban/Suburban and Glades Tiers. Through a review of County records, it was determined that there were thousands of acres of land currently zoned AR in the Urban/Suburban Tier. Thus, under the existing tiered land use designations, those AR zoned parcels were inconsistent with the Comprehensive Plan. Accordingly, the Plan Amendment revised Table 2.2.1-j.l to add AR zoning districts as being allowable in LR, MR, and HR Future Land Use Designations, thus making AR zoning districts consistent in the Urban/Suburban Tier. Revised Table 2.2.1-j.l, footnote 4, applies to AR zoning districts within the Rural Residential (existing), and the LR, MR, and HR Future Land Use Designations (added). The requirement for AR zoned properties to rezone with a maximum LR-1 density of one unit/acre is eliminated because such properties, with the proposed Plan Amendment, will be consistent with LR, MR, and HR Future Land Use Designations within the Urban/Suburban Tier and, thereby, maintain their agricultural residential uses. Proposed Policy 2.2.1-p recognizes that there are established rural residential enclaves within the Urban/Suburban Tier that have an LR Future Land Use Designation, and affirms the County’s support of the continuation of those rural areas. Allowing properties with LR Future Land Use Designations to subdivide up to one unit/acre does not increase density, as the LR Future Land Use Designation currently allows up to one unit/acre without the Plan Amendment. Policy 2.2.1-p is unchanged in establishing that the County may apply its Uniform Land Development Code (“ULDC”) standards for rural residential development in low density and agricultural future land use categories. Petitioner failed to prove, beyond fair debate, that revised Table 2.2.1-j.l, footnote 4, is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w, that it improperly increases density, or that any existing County subdivision regulations would not apply. Furthermore, Petitioner, having failed to offer any evidence as to revised Table 2.2.1-j.l, footnote 4’s, inconsistency with revised Table 2.2.1-p, failed to meet its burden with regard to that element of its Amended Petition. Policy 2.2.1-n.5. Revised Policy 2.2.1-n.5. is designed to direct more intense non-residential uses allowed in residential areas to properties “along major thoroughfares and roadways” and away from residential streets. In its Amended Petition and Mr. Crosby’s testimony, Petitioner alleged that revised Policy 2.2.1-n.5. is inconsistent with new policy 2.2.1-w regarding the adoption of specific overlays to protect “the character of individual rural enclaves identified through the neighborhood planning process.” As indicated previously, the Plan Amendment did not create a specific overlay to compare for consistency with the authority for, but not the implementation of, the creation of future overlays. Revised Policy 2.2.1-n.5. is designed to direct allowable non-residential uses to the periphery of residential communities “along” the major thoroughfares, which is not the same as “in proximity” to major thoroughfares. Pursuant to proposed Policy 2.2.1-n.5., local residential streets are not to be subject to commercial vehicle activity (other than home businesses), and more intense non-residential uses in residentially-zoned areas will be limited to those with access to major thoroughfares. The more restrictive language is intended to protect residential neighborhoods in any Managed Growth Tier. Revised Policy 2.2.1-n.5. cannot be read in isolation from other provisions of Policy 2.2.1-n, including the existing requirements that non-residential uses, when being permitted, be consistent with the Comprehensive Plan, and that their density and intensity be comparable and compatible with the adjoining residential area, and revised Policy 2.2.1-n.6., which requires conditions of approval of the non-residential uses “to ensure compatibility with surrounding residences.” Petitioner failed to prove, beyond fair debate, that revised Policy 2.2.1-n.5. is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w. Deleted Language Petitioner failed to offer any evidence as to the language deleted from the FLUA Regulation Section to demonstrate that it rendered the Plan Amendment inconsistent with the Comprehensive Plan. Petitioner therefore failed to meet its burden with regard to that element of its Amended Petition. County’s Evidence The County introduced competent, substantial testimonial and documentary evidence that the Plan Amendment is consistent with the Comprehensive Plan FLUE, Section I.C. “County Directions,” paragraphs 1, 2, 4, 5, and 15. The Plan Amendment promotes the protection of established neighborhoods, fosters agriculture uses, establishes that existing rural neighborhoods within the Urban/Suburban Tier cannot be replaced, and will manage growth in a manner to protect these areas. The County demonstrated that the Plan Amendment is designed and intended to direct growth towards activity nodes and centers and along major thoroughfares, and promote redevelopment and urban infill in appropriate areas of the County. The County introduced competent, substantial testimonial and documentary evidence that the proposed Plan Amendment is consistent with the Comprehensive Plan FLUE, Section II., Objective 1.1 “Managed Growth Tier System” by maintaining a variety of housing and lifestyle choices, enhancing existing communities, protecting land for agriculture, and providing opportunities for agriculture. The County introduced competent, substantial testimonial and documentary evidence that the proposed Plan Amendment is consistent with the Comprehensive Plan FLUE, Section II., Objective 1.2 “Urban/Suburban Tier - Urban Service Area,” Policy 1.2-a by protecting the character of rural enclaves through the promotion of agriculture and home-based commercial uses that are compatible with the neighborhoods, while directing increased density away from the center of rural neighborhoods.
Conclusions For Petitioner: Benjamin Crosby, Qualified Representative Palm Beach Farms Rural Preservation Committee, LLC 7425 Wilson Road West Palm Beach, Florida 33413 Troy W Klein, Esquire Law Office of Troy W. Klein, P.A. Suite 1B, Barristers Building 1615 Forum Place West Palm Beach, Florida 33401 For Respondent: Kim Phan, Esquire Jason Tracey, Esquire Palm Beach County Attorney's Office Suite 359 300 North Dixie Highway West Palm Beach, Florida 33401
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Palm Beach County as Ordinance 2018-031, on October 31, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes; and that Petitioner’s challenge was not brought for an improper purpose as defined in section 120.569(2)(e), Florida Statutes, or section 120.595(1), Florida Statutes. DONE AND ENTERED this 8th day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2020.
The Issue Whether the Petitioner's applications for two outdoor advertising permits, dated June 1, 1999, and received by the Respondent on June 10, 1999, should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for, among other things, issuing permits and regulating outdoor advertising structures and signs along the state highway system, the interstate system, and the federal-aid primary system. Section 479.02, Florida Statutes (1999). In the applications received by the Department on June 10, 1999, AK Media sought permits for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 7/U.S. 441, 2.4 miles north of Atlantic Avenue in Palm Beach County, Florida, and approximately 57 feet from the State Road 7 right-of-way. AK Media has leased the proposed site from its owner. As a required part of the applications, AK Media submitted two Florida Department of Transportation forms executed on April 12, 1999, by Jon Mac Gillis, Principal Site Planner for Palm Beach County. The current zoning of the proposed site was identified on the form as "CG Commercial General," and the designation of the proposed site on the future land use map was identified as "SA", that is, "Special Agriculture." It was further indicated on the form executed by Mr. Gillis that, within the "SA" designation, commercial and industrial uses were the "predominate uses allowed within 660' of the highway adjacent to the proposed site." On May 26, 1999, Palm Beach County issued a Special Permit allowing AK Media to register the proposed billboard. In its Notice of Denial of Application, the Department identified one basis for denying AK Media's applications as follows: Site is in un-permittable land use designation. Pursuant to Section 479.111, Florida Statutes, outdoor advertising signs must be located in commercial or industrial zoned or unzoned areas. Section 479.01(3) defines "commercial or industrial zone" as an area "designated predominately for commercial or industrial use under the future land use map of the comprehensive plan adopted pursuant to Chapter 163." The land use designation for the subject site is SA. The Palm Beach County, Florida, Official Zoning District Map in effect at the time of the hearing identified the zoning of the proposed site of the outdoor advertising signs as "CG" (Commercial General). The Future Land Use Atlas of Palm Beach County in effect at the time of hearing designated the proposed site of the outdoor advertising signs as "SA" (Special Agriculture). Palm Beach County's 1989 Comprehensive Plan, as revised December 13, 1999, was in effect at the time of the hearing. "Special Agriculture Uses" are defined therein in pertinent part: The following land uses and intensities are allowed in areas designated Special Agriculture where permitted by the terms of the Unified Land Development Code: Fruit and vegetable markets and terminals for farm products; Agricultural production uses including, but not limited to, produce packing plants, poultry and egg production, nurseries, growing, livestock, kennels, training centers and potting soil manufacturing; Agriculturally related services such as feed and grain stores and farm implement sales and service and fueling areas restricted solely to agricultural activities; Mining, subject to the limitations; Uses and structures accessory to a permitted use; and Limited residential uses as described below, farm labor quarters and camps; caretaker's quarters, such as for pump houses; dwelling quarters and farm residences for bona fide farm operations; or dwelling units allowed as alternative use. The Palm Beach County Comprehensive Plan defines "Commercial Agricultural Development" as follows: "Agriculture conducted for commercial purposes within the Agricultural Production Plan Category North of L-8 Canal and East of the North Tieback Canal, the AG Reserve Plan Category, and those activities classified as special agriculture." In concluding that AK Media's applications should be denied, the Department's field inspector confirmed the "SA" designation on the Palm Beach County future land use map but disregarded the certification of the Principal Site Planner for Palm Beach County that the proposed site was zoned "GC" and that predominately commercial uses were allowed within areas designated "SA" in the future land use map. The proposed site of the outdoor advertising signs is designated for commercial use in Palm Beach County's future land use map, albeit commercial use related to agriculture, and the site is zoned General Commercial, as shown on Palm Beach County's current zoning map. The proposed site is, therefore, located within a commercial zone.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting the applications of AK Media, Inc., for permits to erect outdoor advertising signs on the site identified in the applications. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 8th day of June, 2000.
The Issue The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
Findings Of Fact Adoption History Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6) The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9) On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition. The Lake Wales Ridge Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties. The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places. Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered. In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure. The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse. Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent. Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea. A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible. The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development. There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened. The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat. Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix. Scrub jays are very territorial. The tend to stay on one specific site. Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres. Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years. Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles. In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection." Conservation, Use, and Protection of Natural Resources Natural Vegetation and Wildlife Subelement [sic] Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies. Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative. Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints. Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern. Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations. Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy 3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution. Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs; recommendations for appropriate mitigation and on-site protection measures; recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and a list of agencies which may have permit requirements pertaining to the proposed development. Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project. Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order. In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required. Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations. These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC. Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits. Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries; (4) important aquifer recharge areas; and (5) unique scenic or natural resources. In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction. Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners. To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing. Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices. Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds. Wetlands Subelement [sic] Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems. Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps. In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3. In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes. State and Federal Protections State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County. See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis. By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County. Measuring Success of Protection Measures Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida. The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole. The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows: "Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12), mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0); "Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0); Open water (202/1); and "Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11) Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands. In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources. Data and Analysis and Maps Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan. The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities. The Conservation Overlay Maps The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect endangered species and other resources on and near the Ridge where most the special habitat and most development coincided. Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map. In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources. The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989." The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map. The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director." No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located. FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map. The Future Land Use Map Series In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62. The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993. In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990". FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents. FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57. HEC's Contentions HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing. HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources. Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear. Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate. It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County. Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur. It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3. HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way. Future Land Use Element Residential Land Use Density In Agricultural Land Use Categories HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list. The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres. The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7 There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason. Population Accommodation Data and Analysis HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993. HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions. Protection of Water Quality and Quantity The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health- related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination. Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination. Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water. Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County. HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance." DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
The Issue The issue in this case is whether an amendment to the Metropolitan Dade County comprehensive plan adopted as Item No. 6, Ordinance No. 94-192, is "in compliance", as those terms are defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Village of Key Biscayne (hereinafter referred to as the "Village"), is a local government (a municipal corporation) located within Dade County, Florida. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department, among other things, is charged with responsibility for the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Respondent, Metropolitan Dade County (hereinafter referred to as "Dade County"), is a political subdivision of the State of Florida. Dade County is responsible under the Act for the preparation, processing, and review of land use plans and amendments thereto within its jurisdiction. Intervenor, Marine Exhibition Corporation (hereinafter referred to as "Marine"), is the applicant for the amendment which is at issue in this case. Marine is the owner of the Miami Seaquarium (hereinafter referred to as the "Seaquarium"), a saltwater oceanarium and tourist attraction located in Dade County, Florida. The Village's Standing. The Seaquarium is located on Virginia Key, an island located in Biscayne Bay. The Seaquarium is connected with the mainland of Dade County by the Rickenbacker Causeway. The Village is located on Key Biscayne. Key Biscayne is an island located in Biscayne Bay. Key Biscayne is connected to Virginia Key. Key Biscayne is connected with the mainland of Dade County through Virginia Key. The Rickenbacker Causeway runs through Virginia Key, past the Seaquarium, over a bridge onto Key Biscayne. The Causeway becomes Crandon Boulevard, which runs to and through the Village and ends at Cape Florida, at the southeastern corner of Key Biscayne. Virginia Key and Key Biscayne are located within the jurisdictional boundaries of Dade County. The closest Village boundary to the Seaquarium is located approximately 2 and 1/4 to 2 and 1/2 miles from the Seaquarium property. The Village is located completely within Dade County's jurisdictional boundaries. The Village, therefore, owns property located in Dade County. The Village conducts all of its business within its city limits, located on Key Biscayne. The weight of the evidence failed to prove that the plan amendment at issue in this proceedings will "produce substantial impacts on the increased need for publicly funded infrastructure" of the Village or will create a "substantial impact on areas designed for protection or special treatment within the [Village's] jurisdiction." See Section 163.3184(1)(a), Florida Statutes. The Village raised objections by oral and written comments concerning the proposed amendment (hereinafter referred to as the "Proposed Amendment"), at public hearings during the period of time commencing with the transmittal hearing and ending when the Proposed Amendment was adopted by Dade County. The Village's objections and comments did not include objections or comments concerning density and intensity standards. The Seaquarium. The Seaquarium is located on thirty-seven acres. The property is owned by Dade County and has been subject to a long-term lease to Marine. Dade County also owns all structures erected on the site and all marine mammals. The Seaquarium has been in operation at its present site since 1954. The Seaquarium has a history of providing entertainment, educational and recreational uses to residents and visitors to Dade County. Existing uses of the Seaquarium include approximately ten marine mammal exhibits and corresponding shows featuring these mammals, a marina, theme-oriented gift shops and restaurants. Educational activities at the Seaquarium include: (a) a program to train teachers in marine science and student field trips (over 75,000 students attend the past year) in cooperation with Dade County and Broward County, Florida; (b) the largest manatee rehabilitation and recapture program in the United States; (c) an internship program with the Mast Academy, a magnet school for gifted high school students; and (d) research and development exchange programs with the National Oceanographic and Atmospheric Administration (hereinafter referred to as "NOAA"). Florida Quality Development Designation. Marine decided to improve its facilities at the Seaquarium through a project it labeled "Seaquarium Village." Marine initially sought and obtained a designation from the Department of the Seaquarium Village as a Florida Quality Development (hereinafter referred to as "FQD"), pursuant to Chapter 163, Florida Statutes. The Seaquarium Village project was subsequently challenged by the Village pursuant to Section 163.3215, Florida Statutes. The Village alleged that Seaquarium Village was not consistent with Dade County's comprehensive plan (hereinafter referred to as the "Plan"). The Third District Court of Appeal entered an opinion on November 9, 1993, finding that the project was inconsistent with the Dade County Comprehensive Development Master Plan (hereinafter referred to as the "Plan"). Village of Key Biscayne v. Dade County, 627 So.2d 1180 (Fla. 3d DCA 1993), rev. den., 639 So.2d 976 (1994). The Proposed Amendment. The Plan includes a Land Use Element. The Land Use Element identifies locations in Dade County where various land uses, including intensities of use, will be allowed during the period for which the Plan applies. The land uses are also depicted on the Future Land Use Map. One of the land uses provided for in the Plan is the "Parks and Recreation" land use. The Seaquarium is located within the "Parks and Recreation" Land Use Plan map category of the Plan. The Plan includes the following descriptive text concerning the "Parks and Recreation" Land Use Plan map category: Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational, entertainment or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Marine filed an application in November of 1993 with Dade County seeking approval of a modification of the "Parks and Recreation" land use category for the site of the Seaquarium. The proposed modification ultimately adopted by Dade County, after Dade County and Marine cooperated to agree on the proposed language, provides for the addition of the following language immediately after the descriptive text quoted in finding of fact 24: [Included in the category is the Seaquarium, a unique tourist attraction with a long history of educational, entertainment, and recreational benefit both to residents of Dade County and to visitors. Notwithstanding any other provisions in the Parks and Recreation section of the Land Use Plan Element, in order to continue and to enhance its contributions to the community, this facility may be authorized to renovate, expand, and increase the variety of its educa- tional, recreational and entertainment attractions. Accordingly, the following additional uses may be permitted at the Seaquarium site: recreational and educational uses, restaurants, gift shops, marine or water amusements, and environmentally- related theaters.] 1/ The Proposed Amendment does not apply to any Parks and Recreation site other than the Seaquarium site. Following transmittal of the Proposed Amendment to the Department, the Department issued its Objections, Recommendations and Comments report (hereinafter referred to as the "ORC"), on or about September 1, 1994. In the ORC the Department objected, in relevant part, to the lack of adequate data and analysis to demonstrate the compatibility of the Proposed Amendment with the surrounding land uses and raised questions concerning whether the proposed project was in a Coastal High Hazard Area. In response to the ORC, Dade County provided the following information to the Department: (a) the record of the transmittal and adoption hearings; (b) Chapter 9J-11 deliverables; (c) information on the surrounding land uses in the vicinity of the Seaquarium; (d) the Seaquarium FQD; (d) the Seaquarium ADA; and (e) information concerning coastal high-hazard area. The proposed Seaquarium modification of the Parks and Recreation Land Use Element was adopted by Dade County on October 13, 1994, by Ordinance No. 94- 192. In December, 1994, after review of the Proposed Amendment and the additional information provided by Dade County, the Department issued a Notice of Intent to Find the Proposed Amendment in Compliance. The decision of the Department was challenged by the Village on or about December 30, 1994. Intensity or Density of Use. The Act provides the following regarding the Future Land Use plan element required to be included in all comprehensive plans: . . . designating proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private uses of land. . . . Each land use category shall be defined in terms of the types of uses included and specific standards for the density or intensity of use. . . . Section 163.3177(6)(a), Florida Statutes. See also Rule 9J-5.006(3)(c)7., Florida Administrative Code. The requirement of Section 163.3177(6)(a), Florida Statutes, concerning densities and intensities applies to all comprehensive plans and amendments thereto. "Densities" and "intensities" are objective methods of determining the extent to which land may be utilized. "Densities" are usually expressed in terms of the number of units allowed per acre of land. Rule 9J-5.003(33), Florida Administrative Code, defines "density" as "an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre." This definition of "density" was first adopted by rule in 1994. Densities are usually associated with residential uses. "Density" requirements are not relevant to the Proposed Amendment because it does not involve residential use of land. "Intensities" are most often expressed in terms of spatial uses, such as the amount of allowable floor space, lot coverage, or height. Rule 9J- 5.003(63), Florida Administrative Code, defines "intensity" as "an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on natural resources; and the measurement of the use or demand on facilities and services." This definition of "intensity" was first adopted by rule in 1994. The purpose of requiring density and intensity standards is to promote intelligent planning which allows for the measurement of developments on natural resources and infrastructure capacity, and allows the evaluation of compatibility with surrounding land uses. Initial Approval of the Plan. The Plan was submitted to the Department for initial review in 1988. The Plan was one of the first comprehensive plans reviewed pursuant to the Act by the Department. At the time of the Department's initial review of the Plan, there was no definition of density or intensity provided by rule. The definitions of density and intensity included in Rules 9J-5.003(33) and (63), Florida Administrative Code, were not adopted until 1994. The Parks and Recreation category of the Plan, when originally submitted for review, was required to include an intensity standard. The Plan's definition of the Parks and Recreation land use category did not, however, contain a specific restriction on intensity of use such as a floor area ratio, maximum lot coverage, or height restriction. Rather than include a specific intensity restriction in the Plan, Dade County elected to describe the types of nonresidential uses which would be allowed under the Parks and Recreation land use category. Dade County restricted allowable uses to those which are complementary to the site and its natural resources. Dade County believed that its description of allowable uses constituted an adequate intensity standard, providing an objective measurement of the extent that land could be developed, the use and demand on natural resources, and the use and demand on facilities and services. Dade County is the largest county in Florida. It includes approximately 2000 to 2100 square miles. Dade County, therefore, elected to emphasize its natural resources and public service impacts on a "macromanagement" basis. The Parks and Recreation land use category included in the Plan allows a wide range of park and recreational uses, including "neighborhood parks, area parks, metropolitan parks, regional and state parks, including Everglades National Park, [and] tourist attractions such as the Seaquarium, Metro Zoo, [and] Viscaya . . . ." Transcript, Vol. III, Page 402. The Department approved the Plan without objection, recommendation or comment with regard to the definition of the Parks and Recreation land use category. The "Baby Seal Policy". The Department's policy concerning the application of the Act to growth management plans has evolved since the initial plans were reviewed. The Department has recognized that some of the plans it initially approved may be "less than perfect". In recognition of this problem, the Department found it necessary to develope a policy to deal with plans that do not comply with the Department's interpretation of the Act now that the Department has more experience interpreting and applying the Act. The Department's response to the problem of dealing with plans that may not comply with the Act, but have previously been approved, is referred to as the "Baby Seal Policy". This policy has been described as follows: Local government A's comprehensive plan provides that ten baby seals may be killed over the planning period while local government B's plan provides that no baby seals may be killed. Both plans are initially approved by the Department. Subsequently, the Department adopts a rule that prohibits the killing of baby seals. Local government A then amends its plan to allow the killing of eight baby seals rather than ten. Local government B also amends its plan to allow the killing of two baby seals. In applying the "Baby Seal Policy" the Department would approve local government's amendment because it moves local government A's plan closer to complying the prohibition against killing baby seals. Local government B's amendment would not be approved, however, because it moves its plan further from complying with the prohibition. The Department's Baby Seal Policy was developed so that the Department can comply with the requirement of Rule 9J-5.002(2)(h), Florida Administrative Code, that the Department consider as part of its review of plan amendments whether an amendment makes substantial progress towards consistency with applicable requirements of the rules and the Act. Rule 9J-5.002(2)(h), Florida Administrative Code, requires consideration during the review of a proposed plan amendment of the following: Whether the provision at issue constitutes substantial progress over existing provisions regarding consistency with and furtherance of Chapter 163, the State Comprehensive Plan, Strategic Regional Policy Plan and this Chapter, where the existing provisions are in a plan or plan amendment previously found in compliance. The Department's "Baby Seal Policy" encourages local governments to adopt amendments to previously approved plans (which may not be in compliance with all provisions of the Act and/or Chapter 9J-5, Florida Administrative Code), which bring those plans closer to being in compliance with the Act and/or Chapter 9J-5, Florida Administrative Code. I. Application of the Baby Seal Policy to the Proposed Amendment. The Department recognizes that the Parks and Recreation land use category of the Plan may not be in compliance with the requirements of Chapter 9J-5, Florida Administrative Code, because it does not provide for the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code. The Proposed Amendment, however, continues Dade County's choice of describing the Parks and Recreation land use category by specifying the types of allowable uses at the Seaquarium. There is no doubt that the Proposed Amendment includes uses allowable on the Seaquarium site which, when read alone and without regard to the Plan's overall definition of the Parks and Recreation land use category, are broad. The Proposed Amendment clearly does not include the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code. The Proposed Amendment does, however, provide more detail as to the allowable uses on the Seaquarium site than currently included in the Parks and Recreation land use category. Consequently, the Proposed Amendment does provide greater certainty for indentifying the potential impacts of development at the Seaquarium site than the current definition of the Parks and Recreation land use category. The Proposed Amendment does, therefore, move the Plan in the direction of compliance with Chapter 9J-5, Florida Administrative Code, in furtherance of the Baby Seal Policy and as required by Rule 9J-5.002(2)(h), Florida Administrative Code. Internal Consistency. Internal consistency between and within elements of a growth management plan is required by the Act. Internal consistency must be maintained when a plan is amended. Without consistency in the provisions of a plan, it will not be clear what actions are allowable and unallowable under a plan. The Proposed Amendment provides that certain modifications of the Seaquarium site will be allowable under the Plan "[n]otwithstanding any other provisions in the Parks and Recreation Section of the Land Use Plan Element . . . ." This language creates a clearly designated exception to, or deviation from, other requirements of the Land Use Plan Element. A clearly specified exception to, or deviation from, a provision in a plan does not create an inconsistency. The evidence failed to prove that the Proposed Amendment creates an internal inconsistency with the Plan. Data and Analysis. Plan amendments must be supported by data and analysis. Rules 9J- 5.005(2) and 9J-5.006(2), Florida Administrative Code. Dade County provided, in addition to information concerning the surrounding area and coastal high hazard areas requested by the Department, the FQD and the Application for Development Approval (hereinafter referred to as the "ADA"), to the Department in support of the Proposed Amendment. While the FQD and the ADA pertain to a specifically proposed development, these documents contain data concerning the Seaquarium site, the only site to which the Proposed Amendment applies. Although the Proposed Amendment is not limited to the project approved in the FQD or the portion of the ADA which relates expressly to the project approved in the FQD, the ADA contains information concerning the only site to which the Proposed Amendment applies. That information, or data, and the analysis thereof is relevant to a determination of whether the Proposed Amendment should be approved. The information contained in the ADA is useful in estimating the impacts of the types of development that are permissible pursuant to the Proposed Amendment and not just the impacts of the development addressed in the FQD. The FQD and the ADA also provide information concerning what type of project may reasonably be expected at the Seaquarium site. Much of the pertinent data contained in the ADA also constitutes the best information available concerning the Seaquarium site and, therefore, the subject of the Proposed Amendment. While the only expert witness called by the Village, Mr. David Russ, opined that the FQD does not constitute the data and analysis required in support of the Proposed Amendment, Mr. Russ did not give a similar opinion concerning the ADA. Nor had Mr. Russ read the ADA. Non-development specific data provided to the Department in the ADA included information concerning services and facilities related to development at the site. In particular, data is included in the ADA concerning traffic and emergency services (proposed traffic improvements, trips, the existing roadway network, the applicable level of service and projected background traffic). Data was also provided in the ADA concerning wastewater, drainage and potable water (existing water distribution and transmission systems, pervious and impervious conditions), and solid waste. Data and analysis concerning the natural resources of the Seaquarium site was also included in the ADA. Existing on-site vegetation and wildlife are inventoried and information concerning air quality and wetlands is provided. Data and analysis concerning historical and archeological resources is also provided in the ADA. Question 12 of the ADA provides information concerning the need for renovation and expansion of the Seaquarium site. Data and analysis concerning the need for redevelopment of the site was unrefuted by competent, substantial evidence. The Department was also provided with data and analysis concerning the area which surrounds the site. Surrounding uses included the University of Miami Rosentiel School of Marine and Atmospheric Sciences, the United States National Marine Fisheries Laboratory Station and offices, the National Oceanographic and Atmospheric Administration offices, the Mast Academy, the City of Miami Marine Stadium and the Metro Dade County Central Regional Wastewater Treatment Facility. The Seaquarium and redevelopment which would be allowable pursuant to the Proposed Amendment are compatible with these surrounding uses. The Village's suggestion that the data and analysis provided to the Department in the FQD and the ADA (which had not been read by the Village's expert witness) was not sufficient because the FQD pertains to a specific project is not supported by the weight of the evidence. The FQD and, more importantly, the ADA contain sufficient data and analysis to support the allowable land uses of the Proposed Amendment. In addition to suggesting that the data and analysis provided to the Department is insufficient because the data and analysis relates to a specific project, the Village has argued that insufficient data and analysis has been provided with regard to intensity of use. This argument is essentially an extension of the Village's argument concerning the lack of an intensity standard. There is as much, or more, data and analysis provided with the Proposed Amendment concerning intensity of use as there is to support the existing Parks and Recreation land use category. The data and analysis to support the Parks and Recreation land use category which is presumed to exist, may also be relied upon in reviewing a plan amendment. Additionally, the data and analysis provided as a part of the ADA is sufficient to support the maximum intensity of use allowable pursuant to the Proposed Amendment. The evidence failed to prove that there was not adequate data and analysis to support a determination that the Proposed Amendment is "in compliance".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order dismissing the Amended Petition for Administrative Hearing Pursuant to Section 120.56, Florida Statutes, filed by the Village of Key Biscayne. DONE and ENTERED this 31st day of July, 1996, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996.*
